Public Prosecutor v Manta Equipment (S) Pte Ltd

• Jurisdiction: Singapore
• Judge: Adam Nakhoda
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] SGDC 139
• Court: District Court (Singapore)
• Hearing Date: 19 January 2021,04 March 2021
• Docket Number: District Summons Case No 900672 of 2020, Magistrate’s Appeals No. 9066-2021-01
• Plaintiff Counsel: Mr Lee Kui Bao (Ministry of Manpower)
• Defendant Counsel: Mr Tan Hock Lay Robin (Robin Tan & Co)
• Subject Matter: Criminal Procedure And Sentencing,Sentencing,Workplace Safety and Health Act Cap 354A, 2009 Rev Ed,Proposed sentencing framework,Application of stare decisis
• Published date: 30 July 2021

District Judge Adam Nakhoda: Introduction

The Accused company employed Mr Sanwar (“the Deceased”) who was part of a team of employees installing a tower crane at a shipyard located at Admiralty Road West (“the shipyard”). Mr Reymundo JR Foryoso Cuispag (“Mr Reymundo”), who was employed by the Accused as an Assistant Field Manager, was in-charge of the team. The shipyard was a workplace under the Workplace Safety and Health Act (“WSHA”). On 13 December 2017, whilst the Deceased and the team of workers were erecting the tower crane, the crane’s jib foot jerked upwards and struck the Deceased causing inflicting fatal injuries.

The Accused pleaded guilty to one charge for an offence under s 12(1) read with s 20 and punishable under s 50(b) WSHA. I sentenced the Accused to pay a fine of $220,000. The primary issue in this case was whether the court should adopt the Prosecution’s new sentencing framework, which they based on the sentencing framework laid down by the 3-Judge High Court in Mao Xuezhong v Public Prosecutor [2020] 5 SLR 580, or apply the sentencing frameworks laid down in the cases of Public Prosecutor v GS Engineering & Construction Corp [2017] 3 SLR 682 and MW Group Pte Ltd v Public Prosecutor [2019] 3 SLR 1300.

The Prosecution being dissatisfied with the sentence have appealed. The Accused has paid the fine.

Charge

The details of the charge are as follows: DSC 900672 of 2020 You, Manta Equipment, are charged that you, on 13 December 2017, being the employer of one Sanwar (“the Deceased”) at a shipyard located at Admiralty Road West, which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A, 2009 Rev Ed) (“the Act”), did in contravention of Section 12(1) of the said Act, fail to take, so far as was reasonably practicable, such measure as are necessary to ensure the safety and health of your employee at work, to wit, you had failed to:- (a) Adequately implement safe work procedures for the erection of a tower crane; and (b) Establish and implement an adequate lifting plan which failures caused the death of the Deceased and you have thereby committed an offence under section 12(1) read with section 20 of the Act, punishable under Section 50(b) of the same Act.

Facts

The Accused is Manta Equipment (S) Pte Ltd, and it was engaged to supply and erect, inter alia, a tower crane (with luffing jib) (“tower crane”) on the vessel Kaombo Sul (“the vessel”). The Deceased who had been working as a rigger/signalman for five years, was deployed as part of the team involved in the erection of the tower crane on the vessel. The Deceased had been working on this job for three days prior to the accident. At the time of the accident, a 60 m long jib was to be attached to the tower crane and the Deceased and his co-worker were preparing to insert fixing pins to the jib foot.

Ministry of Manpower (“MOM”) investigations revealed that the Accused had deviated from the crane manufacturer’s (“the manufacturer”) rigging configuration for the jib. To rig the jib to the tower crane, the manufacturer had stipulated that a 6 m long and a 4 m long lifting gear should be rigged to the jib at its 18th and 21st sling points respectively. This would ensure that the jib was suspended at an inclined angle of about 21o at the jib foot and ensure that the jib nose would be higher than the jib foot (“the manufacturer’s rigging method”), see diagram below

The manufacturer’s manual also stated that “for any assembly or dismantling operations not covered by normal procedures (example constraints relating to crane operating site […]) please consult us”.

Mr Reymundo was aware of the manufacturer’s rigging method. However, without checking with the manufacturer’s manual or consulting the manufacturer, Mr Reymundo decided to rig the jib by using two 6 m long lifting gears rigged at the jib’s 17th and 21st sling points (“Mr Reymundo’s rigging method”). Mr Reymundo had decided to use this method in an attempt to avoid hitting other structures on the vessel during the rigging operation. As a result the jib was suspended at a decline of about 4o at the jib foot, i.e. the jib nose was higher than the jib foot, see diagram below:

As the Deceased and the other workers were waiting to insert fixing pins as part of the installation process, the vessel’s movement (resulting from the tide, wind or waves from other moving vessels) caused the jib connectors to dislodge from the jib. As a result, the jib foot sprung out of the connectors and jerked upwards striking the Deceased’s torso.

If the jib had been rigged according to the manufacturer’s rigging method, the jib foot would not have sprung out of the connectors as the weight of the jib would have been pressing downwards due to the inclined angle of the jib foot.

MOM investigations also revealed that the Accused had, approximately two months before the accident, rigged another jib not in conformity with the manufacturer’s rigging method, i.e. when the jib was lifted, the jib foot had been higher than the jib nose.

The Accused’s failures

The Accused, as the employer of the Deceased, had a duty to take, so far as reasonably practicable, such measures as were necessary to ensure the safety and health of its employees at work.

Failure to adequately implement its safe work procedures for its erection of a tower crane

Under r 4 of the Workplace Safety and Health (Risk Management) Regulations (“RM Regulations”), the Accused had a duty to take all reasonably practicable steps to eliminate any foreseeable risk to any person who may be working at the workplace, and where it was not possible to eliminate the risk, then the Accused had to implement reasonable practicable measures and safe work procedures (“SWP”) to minimise and control the risk.

The Accused’s SWP stated that during a jib lifting operations, the lifting supervisor was to check and ensure that all lifting points used to lift the jib strictly followed the manufacture’s specification. The Accused had referred to this SWP in its risk assessment but it had not disseminated the SWP to its supervisors or workers. The Accused had also allowed, as company practice, the use of two 6 m slings rather than a 6 m and 4 m sling as stipulated by the manufacturer’s rigging method. This practice deviated from both the manufacturer’s rigging method and the Accused’s SWP.

Failure to establish and implement an adequate lifting plan

Under r 4(1) of the Workplace Safety and Health (Operation of Cranes) Regulations (“OC Regulations”), the Accused was required to establish and implement a lifting plan in accordance with principles of safe and sound practice. The Code of Practice of Safe Lifting Operations (“COP”) stated that a lifting plan “shall include but not be limited to” a “provision of a safe place of work for all personnel during lifting operations”.

The Accused’s lifting was found to be bare and against principles of safe and sound lifting as it did not include several elements listed in the COP, including provision of a safe place of work for all personnel. This was apparent as at the material time, the Deceased was standing in an area where he could have been (and was hit) by the jib when the jib connectors dislodged.

The failures caused the death of the Deceased

The Accused admitted to the above failures without qualification and accepted that its failures were cumulatively a significant cause of the death of the Accused.

Issues to be determined

The issues to be determined in this case are as follows: Should the court adopt the Prosecution’s proposed alternative sentencing framework (“ASF”) based on the sentencing framework formulated by the High Court in Mao Xuezhong? Should the court be bound by the doctrine of stare decisis and continue to utilise the sentencing frameworks for offences under s 12(1) WSHA laid down in GS Engineering and MW Group? The appropriate sentence to be imposed on the Accused.

Sentencing Prescribed Penalties

The s 12(1) offence is punishable under s 50(b), in the case of a body corporate, with a fine not exceeding $500,000.

Antecedents

The Accused had no antecedents.

Prosecution’s Submissions on Sentence

The Prosecution acknowledged that the High Court in GS Engineering and MW Group had set out the applicable sentencing frameworks for offences under s 12(1) WSHA. Both cases utilised a two-step sentencing framework. At the first step, involving offence-specific factors, the court would decide an indicative starting point by determining the potential harm caused by the offence and the offender’s culpability. At the second step, the court would consider adjustments to the starting sentence to take into account offender-specific factors. It was noted in both cases that where the offender’s failures caused serious injury or death then this would be an aggravating factor that would merit an uplift to the starting sentence at the second step of the analysis.

The sentencing frameworks under both GS Engineering and MW Group placed greater weight, at the first step of the analysis, on the potential for harm when calibrating the starting sentence. The primary difference between the sentencing framework in GS Engineering and in MW Group was with regard to the harm-culpability matrix conceived in each case. MW Group, which was decided after GS Engineering, relied on a graph-based mathematical approach to establish the sentencing ranges. This graph-based mathematical approach was adopted from Nurun Novi Saydur Rahman v Public Prosecutor [2019] 3 SLR 413, which set out a sentencing framework for an offence under s 15(3A) WSHA.

In Mao Xuezhong, a which was a 3-Judge High Court decision concerning an offence under s 15(3A) WSHA, the High Court rejected the mathematical approach adopted in Nurun Novi and developed a new sentencing framework for offences under s 15(3A) WSHA which was broadly...