Public Prosecutor v GS Engineering & Construction Corp

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 15 December 2016
• Neutral Citation: [2016] SGHC 276
• Published date: 20 December 2016
• Date: 15 December 2016
• Year: 2016
• Hearing Date: 02 September 2016
• Subject Matter: Workplace Safety and Health Act,Principles,Benchmark sentences,Criminal Procedure and Sentencing,Sentencing
• Plaintiff Counsel: Ang Feng Qian and Mansoor Amir (Attorney-General's Chambers)
• Defendant Counsel: Lim Tahn Lin Alfred and Clarissa Lin (Quahe Woo & Palmer LLC)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 276
• Docket Number: Magistrate’s Appeal No 9150 of 2015

See Kee Oon JC: Introduction

In 2004, three major workplace accidents occurred in Singapore – the collapse of Nicoll Highway, the fire on the vessel Almudaina at Keppel Shipyard and the worksite accident at the Fusionopolis building. Collectively, 13 lives were claimed and numerous others were injured in these three workplace accidents. The series of accidents which took place within the short span of less than a year added greater impetus and urgency to the existing efforts to fundamentally reform workplace safety and health practices.

The efforts culminated in the enactment of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“the WSHA”), which covers the safety, health and welfare of persons at work in workplaces, in 2006. The WSHA seeks to create a strong culture of safety at workplaces, and requires the various stakeholders to take reasonably practicable steps to ensure the safety and health of workers and others affected by work.

Numerous prosecutions have taken place under the WSHA since its enactment in 2006 but no prior case has come before the High Court on appeal. In this appeal, the Prosecution seeks to enhance the sentence of a fine of $150,000 that was imposed by the learned District Judge on the respondent, GS Engineering & Construction Corp (“the Respondent”), for an offence under s 12(1), read with s 20 and punishable under s 50(b), of the WSHA. The Respondent had breached its duty as an employer to take necessary measures to ensure the safety and health of its employees at work insofar as this was reasonably practicable. As a consequence of this breach, two of the Respondent’s workers fell to their deaths from the seventh floor of the worksite while they were loading an air compressor onto an unsecured loading platform.

The Prosecution takes the position that the sentence is manifestly inadequate as a fine of at least $300,000 ought to have been imposed. On a broader level, it submits that the sentences imposed by the district court in previous cases are too low, with the majority falling below 30% of the maximum sentence of $500,000 prescribed by the WSHA (in respect of companies as opposed to natural persons). It argues that the sentences thus do not adequately uphold the statutory intent and the public policy concerns behind the WSHA. The Prosecution therefore submits that this appeal presents a useful opportunity for the High Court to set out a sentencing framework and provide guidance on the correct approach towards sentencing for such offences.

Having considered the parties’ submissions, I allow the appeal and increase the quantum of the fine to $250,000. While I agree that the sentence imposed by the District Judge is inadequate, I do not accept that a two-fold increase to $300,000 as submitted by the Prosecution is warranted. Looking at the sentencing precedents, I agree that the sentences hitherto imposed for this offence are on the low side; they do not adequately utilise the sentencing range prescribed by Parliament and do not have sufficient deterrent effect. Thus, in the course of this judgment, I will set out some sentencing considerations that are, in my view, relevant in dealing with such offences. These will hopefully offer some assistance and guidance for the lower courts in the exercise of their sentencing discretion.

Background facts

I begin by setting out the brief facts of the fatal accident in question and the events that led to it. Unless otherwise specified, the facts are undisputed and are mostly extracted from the Statement of Facts (“SOF”), which the Respondent had admitted to.

The fatal accident

The Respondent is a South Korean company in the business of civil engineering and general construction. It was engaged by Jurong Town Corporation as the main contractor to construct two towers (Tower A and Tower B) at Fusionopolis Way, Ayer Rajah Avenue. The two towers were to be 11 and 18 storeys high respectively. The Respondent sub-contracted the structural works of Tower A to another company, Zhang Hui Construction Pte Ltd (“Zhang Hui”). Zhang Hui was to supply labour, materials, tools, equipment and provide supervision for all formwork installation works. The project commenced on 23 November 2011 and was scheduled to be completed by 23 March 2014.

On 22 January 2014, at or about 12.30pm, an accident occurred at the worksite. Two of the Respondent’s employees, Mr Ratan Roy Abinash Roy (“the first deceased”) and Mr Rajib Md Abdul Hannan, died as a result. The two deceased persons had been working as construction workers for the Respondent since 23 November 2012 and 5 June 2012 respectively.

At the material time, the two deceased persons and three other employees of the Respondent were loading an air compressor onto a loading platform at the seventh storey of Tower A under the instructions of their foreman, Mr Nurun Novi Saydur Rahman (“Mr Nurun”), who was also employed by the Respondent. Instead of being securely installed, the loading platform was left suspended at the edge of the seventh storey of Tower A by a tower crane via four lifting chain slings. The air compressor rolled away from the edge of the building when it was loaded onto the loading platform, causing the platform to tilt. Consequently, the two deceased persons, who were standing on the platform and in the way of the air compressor, fell out along with it. The air compressor landed on another loading platform that was installed two storeys down, while the two deceased persons fell to ground level. They were pronounced dead by paramedics who arrived at the scene shortly after.

Events that led to the accident

An investigation into the cause of the accident was carried out. It revealed that the Respondent’s employees were originally only scheduled to shift the loading platform from the tenth storey of Tower B to the eighth storey of Tower A.¹ The loading platform, which was retractable, was used to facilitate the lifting of bulky materials and items from one part of the worksite to another.²

The plan changed when an employee from Zhang Hui approached the Respondent’s site supervisor, Mr Miah Rashed (“Mr Miah”), to request help from the Respondent’s employees to move the air compressor using the loading platform. Mr Miah agreed and asked Zhang Hui to provide five additional workers to help to load the air compressor onto the loading platform.³ Thereafter, Mr Miah instructed the foreman, Mr Nurun, to deploy a group of workers to first shift the loading platform from Tower B to the seventh storey of Tower A to load the air compressor before installing the loading platform at the eighth level of Tower A to facilitate Zhang Hui’s works there. Mr Miah however instructed Mr Nurun not to install the loading platform at the seventh storey of Tower A, but to simply suspend it by a tower crane.

At or about 11.50am that morning, Mr Nurun and his team of workers (which included the deceased persons) commenced the task of shifting the loading platform. There was no lifting supervisor present to oversee the lifting operation.⁴ After the loading platform was shifted from Tower B to the seventh storey of Tower A, Mr Nurun asked Zhang Hui for the additional manpower that was promised.⁵ Zhang Hui was unable to supply any workers as it was lunch time. The Respondent’s workers, led by Mr Nurun, decided to carry out the lifting of the platform along with the air compressor notwithstanding that.

The Respondent’s workers pushed the air compressor, which was mounted on a steel frame (fitted with two wheels at the front and a smaller wheel at the rear), onto the loading platform. But the small rear wheel could not be mounted onto the platform due to the height difference between it and the floor slab. In the process of trying to load the air compressor onto the loading platform, the loading platform started to tilt. At this point, the first deceased and the other co-workers informed Mr Nurun that it was unsafe to continue pushing the air compressor onto the loading platform but Mr Nurun told them to continue doing so. The workers then used a galvanised pipe to pivot the air compressor, and the two deceased persons positioned themselves in front of the air compressor in order to pull it onto the loading platform.

After several attempts, the workers finally succeeded in pushing the rear wheel onto the platform. Unfortunately, the air compressor started rolling towards the two deceased persons once it was mounted on the loading platform, causing the platform to tilt. Both the deceased persons could not move away in time and fell off the loading platform together with the air compressor. Neither of them was wearing a safety harness.

The offence and the specific breaches of duty

The Respondent was prosecuted for contravening s 12(1) of the WSHA in failing to discharge its duty to take measures, so far as it was reasonably practicable, to ensure the safety and health of its employees at work. It admitted that the two deaths could have been prevented had it done so.⁶

Specifically, the Respondent admitted in the SOF to the following three breaches: failing to ensure that everyone involved in the lifting operation was trained to use the loading platform; failing to implement a safe system of work and ensuring, inter alia, that there was a permit-to-work or a lifting plan in place as required and that the risk assessment or safe work procedures were followed; and failing to provide fall protection equipment to its workers while they were working at height.

For completeness, I should point out that the SOF further sets out a fourth breach – that the Respondent had failed to ensure that there were no loose objects on the loading platform. While the Respondent had admitted to this breach as set out in the SOF, the District Judge held that the breach was not made out because the air compressor could not be regarded as “loose material” given that it...