Public Prosecutor v China Construction (South Pacific) Development Co. Pte Ltd

• Jurisdiction: Singapore
• Judge: Chng Hwee Chin
• Judgment Date: 29 January 2007
• Neutral Citation: [2007] SGMC 6
• Court: Magistrates' Court (Singapore)
• Year: 2007
• Published date: 07 February 2007
• Plaintiff Counsel: Vincent Kim and David Lim
• Defendant Counsel: Sadique Marican and Anand Kumar
• Citation: [2007] SGMC 6

29 January 2007 Judgment reserved.

Magistrate Chng Hwee Chin

Introduction

The appeal

1. This Judgment arose from an appeal against conviction and sentence.

The charge

2. The Accused company, China Construction (South Pacific) Development Co. Pte Ltd (“the company”) claimed trial to the following charge (P1A):

“That you, on or about 2^nd day of August 2004, being the occupier of a building operation worksite at Boon Lay Way/Corporation Road Lot 3784A Mk6 Singapore 610000, which was a factory within the meaning of the Factories Act (Cap 104), did in contravention of section 22(1) of the said Act, fail to securely fence the dangerous part of a machinery, to wit, the protruding screw head on the shaft holder of the electrical “Makita” power mixer (Model UT1301) was not securely fenced, when it was not in such a position as to be safe for every person working on the premises as it would be if securely fenced and you have thereby committed an offence under section 22(1) read with section 88(1) of the Factories Act (Cap 104) and being a contravention which was likely to cause the death of, or bodily injury to, any person and punishable under section 89(2) of the same Act.”

The decision

3. At the conclusion of the trial, I accepted the Prosecution’s case and found the Accused company guilty of P1A and convicted the Accused company accordingly. I ordered the Accused company to pay a fine of $8,000. The following sets out the grounds for my decision.

Undisputed facts

4. The company did not dispute the following facts:

(i) that it was the occupier of the said Boon Lay/Corporation worksite (“Boon Lay worksite”) stated in the charge at the material time.

(ii) that there was an incident involving a worker employed by the company, one Huang Jinzhong (“Huang”), at the said worksite sometime on 2 August 2004.

(iii) that Huang was using a Makita power mixer (Model UT1301) at the time of the incident, and had one of his fingers severed during the incident.

The Prosecution’s case

5. The prosecution called a total of 6 witnesses to give evidence in support of its case.

PW1 Investigating Officer Salleh Bin Waren (“IO Salleh”)

6. PW1 Salleh Bin Waren was the Investigating Officer of the case. On 3 August 2004, IO Salleh’s department, the Occupational Safety Health Division of the Ministry of Manpower, was notified that an incident had occurred on 2 August 2004 at the Boon Lay worksite involving a Chinese national worker by the name of Huang Jinzhong. Huang’s distal third middle finger was amputated while he was operating a power mixer with a protruding screw head on its shaft holder[note: i].

7. On 17 August 2004, IO Salleh proceeded to the scene of the incident to conduct investigation into the incident. At the scene, he took a photograph of the Makita power mixer which was used by Huang during the incident, as well as photographs of Huang re-enacting how he was holding the power mixer during the incident. By the time he took the photographs, the protruding screw had already been removed from the Makita power mixer.

8. In the course of investigation, IO Salleh retrieved documents prepared by the company’s safety officer, DW1 Jody Zhang (“Jody”), which was titled “Incident Investigation and Analysis Report” (P4). He also obtained from the company a photograph (P6) taken at the scene on the day of the incident, depicting the power mixer with a protruding screw head on its shaft holder, with spots of blood stains around the area[note: ii].

9. A copy of the instruction manual (P7) of the Makita power mixer was also retrieved from Jody. IO Salleh informed the Court that the instruction manual showed that a set screw should be fitted on the shaft holder, and a rubber sleeve would also cover this set screw[note: iii].

10. IO Salleh spoke to Huang on 17 August 2004, the day he visited the scene. According to Huang, on the day of the incident, he had been carrying out mixing of the cement-based plaster which was inside a bucket. While mixing it, he felt that the mixture was a bit dry and he wanted to add water to it. As there was a hose nearby, Huang intended to reach out for the hose. He released the switch of the power mixer and released his left hand from the grip of the power mixer. The blade of the power mixer became entangled to the handle of the bucket, and he felt numbness on his left middle finger. He then realised his finger had been amputated.

11. IO Salleh confirmed that investigations revealed that there were no other direct eyewitnesses to the incident. However, based on his investigation, he concluded that the injury was caused by a protruding screw head on the shaft holder on the power mixer, which was later removed after the incident. The company was also unable to provide him with proper documents or information on the maintenance and repair of the power mixer for investigation[note: iv].

12. IO Salleh agreed that it was not proper for Huang to be distracted from the use of the power mixer[note: v], when he diverted his attention from the power mixer to the hose. Huang should, in his opinion, have stopped the operation of the power mixer before adding water to the mixture[note: vi].

13. He further stated that if the correct type of screw had been used according to the specifications of the instruction manual and further secured with the rubber sleeve, the incident could have been avoided[note: vii]. He had been informed by some workers that the protruding screw was present on the shaft after the power mixer was returned to them after repair. He could not recall the names of the worker(s) who supplied this information. Although the protruding screw could be used to secure the on the power mixer, it was “not proper or safe to be used on this machine”[note: viii].

14. IO Salleh agreed that section 22(1) of the Act only required a dangerous part of the machinery to be securely fenced. To determine whether the part was a “dangerous part”, it depended on the operation of the equipment and the practicality of securing the “dangerous part”. According to him, a “dangerous part” would be any part of the machinery which is exposed to the worker and liable to cause injury to the worker or other persons[note: ix]. The occupier, the company in this case, should have taken all measures to ensure that the operation will not cause injury to the worker[note: x].

15. In IO Salleh’s opinion, for the power mixer in question, the dangerous parts would be the mixing blade and the set screw if it was protruding. However, based on his investigations, he found that it was the protruding screw which had caused the injury to Huang. He explained that it could not have been the mixing blade as the photograph P6 showed that the mixing blade was buried inside the cement mixture at the material time[note: xi].

PW2 Huang Jinzhong (“Huang”)

16. Huang was employed by the company since February 2004 and was working at the Boon Lay worksite on 2 August 2004. At about 8 p.m. in the evening, he was deployed to do cement work by his group leader, one Du Shaoping (“Du”) at the 11^th level of Block 86[note: xii]. Huang was using a power mixer to mix the cement, and the power mixer in question had been earlier issued to one of his co-workers, one Ma Donglin (“Ma”).

17. Huang informed the Court that he was mixing the cement inside the bucket when he found the mixture too hard. He then released his right hand from the trigger and released his left hand with the intention of adding water to the mixture. Upon releasing his left hand, the shaft of the power mixer was still moving. He then felt that his finger had been hit and felt pain and numbness. He realised his finger had been amputated and called out to Ma. He was then sent to the hospital by Du. The severed finger was reattached on the same day.

18. Huang told the Court that his left hand was at a distance of about 70-80 cm from the floor when it made contact with the power mixer. His hand was hit immediately after he let go of his hand[note: xiii]. According to Huang, it was the screw head which had hit his left finger[note: xiv] and he saw blood stain on the screw head[note: xv]. He agreed that he did not actually see his finger making contact with the screw head. According to Huang, as the mixing blade of the power mixer was entangled to the handle of the bucket, this caused the mixer to veer to the left and hit his finger.

19. Huang had not noticed the protruding screw when he was using the power mixer, and further stated that he had not been taught how or what to check on the power mixer during the weekly safety meetings. He had learnt how to operate a power mixer by observing senior workers use the tool[note: xvi].

20. Huang testified that he had used different power tools about 20 times prior to the incident. He confirmed that he had attended the toolbox meetings on 26 July 2004 and 2 August 2004 where he had, together with the other attendees, been briefed specifically on point 6 recorded in the minutes of those meetings[note: xvii] (exhibit D3).

21. To Huang, as long as the power mixer could be used, he would think it was all right to use it[note: xviii]. He had not seen the protruding screw prior to the incident and on the day of the incident, it was the first time he had used that particular power mixer[note: xix]. He disagreed that the protruding screw in question could be easily seen. He further stated that even if he had seen the protruding screw prior to the incident, he would still have used the power mixer because he did not think it was dangerous[note: xx]. Had he known that it was dangerous, he would not have used it but would have handed it to the group leader[note: xxi].

22. Huang told the Court that he would check the power mixer before operating it, and by checking, he meant that he would plug it into the electrical socket and switch it on, to see if it could turn. He stated that he was not taught how to check the power mixer and did not suspect there was anything...