MW Group Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 14 January 2019
• Neutral Citation: [2019] SGHC 5
• Plaintiff Counsel: Mark Wheeler appearing as corporate representative of the appellant
• Docket Number: Magistrate’s Appeal No 9030 of 2018
• Date: 14 January 2019
• Hearing Date: 19 October 2018
• Subject Matter: Penalties,Criminal Law,Sentencing,Statutory Offences,Criminal Procedure and Sentencing,Workplace Safety and Health Act
• Year: 2019
• Defendant Counsel: Teo Siqi and Mark Jayaratnam (Attorney General's Chambers)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 5
• Published date: 18 January 2019

Chan Seng Onn J: Introduction

Mr Suyambu Suman (“Suman”) was an employee of the appellant company, MW Group Pte Ltd. He tragically met his demise after being electrocuted while conducting high voltage testing and calibration of an Arc Reflection System (“ARS”) machine at his employer’s workplace. Consequently, the appellant was charged under s 12(1), read with s 20 and punishable under s 50(b) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”) for failing to take reasonably practicable measures to ensure the safety and health of its employees at its workplace.

The appellant claimed trial to the charge. It was convicted and sentenced to a fine of $200,000. The grounds of decision of the District Judge below (the “Judge”) is reported at Public Prosecutor v MW Group Pte Ltd [2018] SGDC 110 (the “GD”). The appellant subsequently appealed against both its conviction and sentence.

Having heard the submissions made by the Prosecution and Mr Mark Wheeler (“Wheeler”), the Managing Director and corporate representative of the appellant for these criminal proceedings, I did not think that the Judge had convicted the appellant against the weight of the evidence. Accordingly, I dismissed the appeal against conviction at the hearing of this appeal on 19 October 2018. Therefore, the sole matter remaining for my consideration involves the appellant’s appeal against sentence, which forms the subject matter of this reserved judgment.

This appeal gives me the opportunity to revisit the existing sentencing benchmarks for offences involving a breach of s 12 of the WSHA. These benchmarks were laid down by See Kee Oon JC (as he then was) in Public Prosecutor v GS Engineering & Construction Corp [2017] 3 SLR 682 (“GS Engineering”) at [70]. Having carefully considered the sentencing benchmarks in GS Engineering, I must respectfully disagree in part with See JC’s benchmarks. Accordingly, I decline to apply the benchmarks in GS Engineering to the present case.

As will be elaborated on in further detail below, I have instead formulated a set of revised sentencing benchmarks which are based on the sentencing framework that I had developed in my recent decision in Nurun Novi Saydur Rahman v Public Prosecutor and another appeal [2018] SGHC 236 (“Nurun”). Applying these revised sentencing benchmarks to the present case, I allow the appellant’s appeal against sentence and impose a fine of $160,000 instead.

Facts

Except for what I have stated at [16], I broadly agree with the Judge’s findings of fact which can be found in the GD. Therefore, I shall only reproduce the salient facts which are necessary for an appreciation of the issues relating to sentence in this appeal.

The ARS machine

In order to better understand how the fatal accident occurred, I consider it helpful to first describe how the testing and calibration of the ARS machine was to take place.

The ARS machine is used for the detection of faults in cables by sending high voltage electrical pulses into the cables. It can rapidly charge up to 1,280 joules at up to 16 kilovolts (“kV”). By way of comparison, the standard voltage used in households in Singapore is 220V. A pictorial representation of the set up for the testing and calibration of the ARS machine is shown below:

The person controlling the ARS machine would set the machine to a certain voltage level. Another person would then have to hold the handle of the high voltage probe and touch the tip of the probe to the metallic part at the end of the output cable from the ARS machine. The high voltage probe is in turn connected to a multimeter which will display the voltage measured. The voltage as measured by the multimeter when multiplied by a certain fixed factor, which is a characteristic of the high voltage probe, will provide the value of the voltage actually emanating from the ARS machine. The voltage measurements will then be recorded, and the process is subsequently repeated with the ARS machine set to increasing levels of voltage.

The accident

On 7 November 2013, Wheeler instructed Suman to conduct testing and calibration of the ARS machine. In turn, Suman asked three of his colleagues to assist him, namely Mr Gomathi Nayagam Lakshmi Kanthan (“Lakshmi”), Mr Kuberan Nandhakumar (“Nandha”) and Mr Murugesan Senthil (“Senthil”).

The testing and calibration was conducted inside the laboratory located at 196 Pandan Loop, #02-21, which is the workplace of the appellant. Suman prepared for the testing of the ARS machine by setting up the equipment according to the diagram as shown at [8] above.¹ Suman then instructed Lakshmi to power up the ARS machine and then set the machine to the desired voltage level for testing. He instructed Senthil to record the readings from the multimeter while Nandha was instructed to be on standby. Suman held the handle of the high voltage probe with his left hand, and the output cable from the ARS machine with his right hand. The tip of the high voltage probe was securely attached to a metallic vise grip protruding from the end of the output cable.

Suman and his three colleagues then began the testing and calibration of the ARS machine, starting with a voltage level of 2kV and gradually working their way to higher voltage levels. When the voltage of the ARS machine was set to 12kV, Nandha noticed a spark emanating from the metallic vise grip. At this point, Suman fell backwards and became unconscious. He was conveyed to the hospital where he succumbed to his injuries that same day. The certified cause of death was consistent with electrocution.

The appellant’s failure to take reasonably practicable measures to ensure the safety of its employees

The Judge found that there was a high risk of electrocution in conducting the high voltage testing and calibration, which the appellant’s employees were all well aware of.² Despite this, the appellant had failed to take reasonably practicable measures in order to avert this risk of electrocution.³

First, there had been no proper risk assessments conducted for the activity of high voltage testing and calibration. When officers from the Ministry of Manpower (“MOM”) first visited the appellant’s premises on 16 April 2013, the appellant’s representative at the time was not able to produce any risk assessment forms for electrical testing within the company. Even the risk assessment conducted by the appellant on 25 April 2013 in response to the visit from the MOM officers was unsatisfactory. That risk assessment form, which was dated 25 April 2013, showed that for the work activity of “calibration”, the only risk identified was that of “falling objects” and there was no mention of electrocution. The appellant’s employee who had signed off on this risk assessment form admitted to not knowing if the activity referred to on the form was high or low voltage calibration. The MOM officer who inspected the appellant’s premises a day after the accident occurred testified that the risk assessment for the calibration works was not established, conducted and implemented.⁴ Wheeler conceded that there were no risk assessments conducted for the ARS machine when it arrived at the appellant’s workplace on three previous occasions for testing and calibration.⁵

Second, the appellant had failed to put in place safe work procedures to ensure that the testing and calibration of the ARS machine was carried out in a safe manner. The appellant could not adduce any evidence of safe work procedures it had developed for the calibration of the ARS machine.⁶ An officer from the Energy Market Authority who conducted an investigation of the workplace after the accident testified that one reasonably practicable measure that could have been taken would be to have proper test fixtures to hold the output cable in place during the calibration process.⁷ Without the test fixture, the person operating the probe had to physically hold onto the output cable. This was dangerous because the output cable would be left dangling and could accidentally come into contact with the person holding the cable. Further, a safe working distance would not be maintained between the holder of the probe and the live output cable. Given the high voltages at which the testing was conducted, even the air between the output cable and the person holding it could become a conductor which would enable the current to pass from the output cable and into the person’s body, thereby leading to electrocution. Hence, a test fixture was necessary as it could have prevented the output cable from swinging, and would also have allowed the person holding the high voltage probe to maintain a safe distance from the output cable.⁸ Up to this point, I agree with the Judge’s findings.

The Judge also noted that a stand made of steel was actually available, but it was not used during the calibration.⁹ The Judge stated that if the appellant had developed a risk assessment for the calibration, “the use of a stand would have been stated as a mitigating factor”. I disagree with the Judge that (a) the steel stand that was available in the workshop should be used; and (b) that the use of this stand would have been a mitigating factor to reduce the risk associated with the calibration.

Wheeler had rightly explained at the hearing that using the steel stand might have made matters worse, given that the entire stand is made of metal and would therefore have been fully charged if the live output cable had been attached to it. I agree with Wheeler that attaching the vise grip to a metal stand would have charged the whole metal stand to the same high voltage as that on the metal vise grip which was attached to the end of the output cable of the ARS machine. Making a much larger exposed metal area (ie, the metal stand) charged to a high voltage would cause the work area to be much more dangerous to persons present at the workplace in the vicinity of the large...