Public Prosecutor v Soil Investigation Pte Limited

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 05 August 2019
• Neutral Citation: [2019] SGCA 46
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Reference No 1 of 2018
• Year: 2019
• Published date: 08 August 2019
• Hearing Date: 13 May 2019
• Plaintiff Counsel: Francis Ng Yong Kiat SC, Gabriel Choong Hefeng and Jane Lim Ern Hui (Attorney-General's Chambers)
• Defendant Counsel: Faizal Shah and Vigneesh s/o Nainar (Shah Eigen LLC)
• Subject Matter: Criminal Law,Statutory offences,Public Utilities Act,Statutory Interpretation,Construction of statute
• Citation: [2019] SGCA 46

Tay Yong Kwang JA (delivering the grounds of decision of the Court): Introduction

This criminal reference concerns the interpretation of s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed) (the “Act”). Section 56A imposes secondary liability on a person for offences under the Act where the primary offender acted as an agent or employee of that person or was otherwise subject to the supervision or instruction of that person for the purposes of any employment. The said section is in the following terms:

Liability for offence committed by agent or employee

56A. Where an offence under this Act is committed by any person acting as an agent or employee of another person, or being otherwise subject to the supervision or instruction of another person for the purposes of any employment in the course of which the offence was committed, that other person shall, without prejudice to the liability of the first-mentioned person, be liable for that offence in the same manner and to the same extent as if he had personally committed the offence unless he proves to the satisfaction of the court that the offence was committed without his consent or connivance and that it was not attributable to any neglect on his part.

The Prosecution brought this criminal reference pursuant to s 397(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) for the Court of Appeal to determine a question of law (the “Question”) arising from the High Court’s decision in Soil Investigation Pte Ltd v Public Prosecutor [2018] SGHC 91 (the “GD”), which was an appeal by the respondent from a decision of the District Court. The Question was:

Does the third limb of s 56A of the [Act] limit liability for an offence under the Act committed by a primary offender to only “personnel” or the “directing mind and will” of the primary offender’s principal or employer, who acts in a “supervisory capacity over” that primary offender?

After hearing the parties, we decided that the answer to the Question was “No”. We now give the detailed grounds of our decision.

Background facts

The respondent is a company incorporated in Singapore. On 1 October 2014, the Public Utilities Board (“PUB”) awarded the respondent a contract to carry out soil investigation works for the Deep Tunnel Sewerage System Phase 2 project. Among other things, the respondent was required to set out borehole locations and to carry out underground detection services. The respondent subcontracted part of the soil investigation works to Geotechnical Instrumentation Services (“GIS”).

On 15 March 2015 an employee of GIS, Parvez Masud, began drilling at a borehole. At 6.5m below ground level, he encountered an obstruction. He stopped drilling and informed his supervisor, S Gam Shawng. S Gam Shawng consulted the respondent’s project manager and was instructed to offset the location of the borehole by 600mm. The next day, Parvez Masud drilled 600mm from the borehole. When he reached a depth of 6.7m, he encountered an obstruction again and water began to gush out. Investigations revealed that a NEWater main of 900mm diameter was damaged by the drilling.

The respondent was charged with damaging the water main as follows:

You … are charged that you, on or about 16 March 2015, did cause to be damaged a water main belonging to the Public Utilities Board, to wit, one S Gam Shawng and one P[a]rvez Masud who were subject to your instruction for the purpose of employment to carry out drilling works at the construction site located near to lamppost 96 Pioneer Road, Singapore, without determining the exact alignment and depth of one 900 mm in diameter NEWater main before commencement of the said works, and you have thereby committed an offence punishable under section 47A(1)(b) read with section 56A of the Public Utilities Act, Chapter 261.

At the time of the alleged offence in 2015, s 47A(1)(b) of the Act provided:

Damage to water mains and installations, etc.

47A.—(1) Any person who, whether wilfully or otherwise, removes, destroys or damages or causes or permits to be removed, destroyed or damaged, any water main belonging to or under the management or control of the Board, shall be guilty of an offence and shall be liable on conviction —

…

(b) if the water main is 300 mm or more in diameter, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding 3 years or to both.

The respondent claimed trial and was subsequently convicted in the State Courts and sentenced to pay a fine of $50,000. The respondent then appealed to the High Court.

Decision of the High Court

The High Court Judge (the “Judge”) allowed the appeal and acquitted the respondent. As a consequence, he ordered the refund of the fine paid by the respondent.

The Judge found, on a plain reading of the text of s 56A, that secondary liability under the section extends to offences committed by three categories of individuals: a person acting as an agent of the accused (“first limb”); a person acting as an employee of the accused (“second limb”); and a person being otherwise subject to the supervision or instruction of the accused for the purposes of any employment (“third limb”).

As it was not disputed that the first and second limbs did not apply in this case, the Judge noted that the appeal turned on whether GIS fell within the third limb (GD at [41] and [43]).

The Judge considered that, on a plain reading, the third limb requires the accused’s supervision or instruction of the primary offender to take place in the context of an employment. The third limb would thus apply to personnel of the principals and employers who are interposed between the primary offender and the principals or employers or the directing mind and will of the principals or employers. It therefore covers “managers, foremen and the like”. Subcontractors are liable to main contractors and receive instructions or supervision from main contractors, if any, pursuant to contracts of services between the parties. The third limb would therefore not apply to main contractors because subcontractors are not subject to their supervision or instructions “for the purposes of any employment” (GD at [42] and [46]).

The Judge held that the legislative purpose of s 56A confirmed its ordinary meaning. In his opinion, the legislative purpose of s 56A is to create secondary liability for offences under the Act. Parliament intended for such secondary liability to be limited to persons with a certain proximity to the primary offender by virtue of the nature of their relationships with the primary offender, as reflected in the three limbs of s 56A. The Judge observed that if Parliament had intended to include offences by subcontractors in s 56A, Parliament would have included an explicit reference to subcontractors, especially given that hirers of independent contractors are generally excluded from liability under the tortious doctrine of vicarious liability (GD at [50]–[53]).

The Judge did not find the extraneous material relating to s 56A to be particularly useful in ascertaining the legislative purpose of the section. The Judge declined to consider parliamentary statements made in respect of similar provisions in other statutes as he was of the view that the difference in the background and context in which different statutes are drafted rendered it unhelpful to refer to such extraneous material. In his view, the explanatory statement to the bill which introduced s 56A, the Public Utilities (Amendment) Bill (No 7 of 2012) (the “Bill”), addressed the issue of which offences under the Act attracted secondary liability rather than to whom secondary liability extended (GD at [58] and [62]).

Based on his view on the correct statutory interpretation of s 56A, the Judge found that neither GIS nor Parvez Masud was instructed or supervised by the respondent for the purposes of employment. Accordingly, he acquitted the respondent on the charge and found it unnecessary to determine if the statutory defence provided in s 56A was satisfied (GD at [66]–[67]).

The parties’ cases The Prosecution’s case

The Prosecution submitted that the requirements for a criminal reference, set out in s 397(1) of the CPC, were satisfied. This reference arose from the High Court’s exercise of appellate jurisdiction and the Question before this Court is a legal question that would be directly dispositive of the appeal before the High Court. The Question will also have a bearing on other cases under s 56A and similar legislation. There is no other High Court decision, apart from the GD, on the interpretation of s 56A or similar provisions.

The Prosecution submitted that the Question should be answered in the negative. This is because the third limb of s 56A does not limit liability to only personnel or the directing mind and will of a primary offender’s principal or employer, who act in a supervisory capacity over the primary offender.

The Prosecution contended that an ordinary reading of the third limb in s 56A reveals two layers of ambiguity. First, the word “employment” can refer to either: (i) a legal relationship in the sense of employment pursuant to a contract of service (the “technical meaning”); or (ii) engagement or use to do something whether or not there is a contract of service (the “broad meaning”). The Prosecution argued that “employment” in the third limb should bear the broad meaning as it is the meaning that comes most naturally to a reader. Further, the third limb of s 56A is prefaced with the word “otherwise”, indicating that, unlike the first and second limbs, the third limb is concerned with supervision or instruction which does not arise from a technical legal relationship. The use of the phrase “any employment” similarly points towards the adoption of the broad meaning. It suggests that the third limb is meant to encapsulate all employment, regardless...