Public Prosecutor v Tay Tong Chuan

• Jurisdiction: Singapore
• Judge: Adam Nakhoda
• Judgment Date: 01 April 2019
• Neutral Citation: [2019] SGDC 58
• Court: District Court (Singapore)
• Docket Number: DCN 900028 of 2018
• Published date: 01 June 2019
• Year: 2019
• Hearing Date: 04 December 2018,28 February 2019,15 January 2019
• Plaintiff Counsel: DPP Kumaresan Gohulabalan with Mr A M Mohamed Riausudeen
• Defendant Counsel: Mr Ernest Sia
• Citation: [2019] SGDC 58

District Judge Adam Nakhoda:

Mr Tay Tong Chuan (“Mr Tay”) pleaded guilty to an offence under section 204A read with section 116 of the Penal Code (Cap 224) of abetting by instigating another person to intentionally obstruct the course of justice. He also pleaded guilty to an offence of negligently doing an act which endangered the safety or another person under section 15(3A) of the Workplace Safety and Health Act (Cap 354A) (“WSHA”). I sentenced Mr Tay to eight weeks’ imprisonment for each charge and ordered the sentences to run consecutively.

The Prosecution being dissatisfied with the sentence imposed for the offence under section 204A read with section 116¹ of the Penal Code has appealed. This Grounds of Decision will be confined to my reasons for imposing a sentence of eight weeks’ imprisonment for the section 204A read with section 116 Penal Code offence.

Mr Tay, through his Defence Counsel, Mr Ernest Sia (“Mr Sia”), informed the Court that he intended to commence serving his sentence immediately. However, the Deputy Public Prosecutor, Mr Kumaresan Gohulabalan (“Mr Gohulabalan”) applied for the Court to order a stay of the commencement of sentence of imprisonment as the Prosecution intended to appeal against the sentence. Mr Gohulabalan submitted that the case was not suitable for an expedited appeal as the Prosecution required time to put up detailed submissions to the High Court in order to canvass all the relevant considerations and that this case may lead to the High Court establishing a sentencing benchmark for section 204A Penal Code offences. Mr Gohulabalan submitted that as the Prosecution was seeking an additional eight weeks’ sentence there was a possibility that if Mr Tay commenced his sentence on 28 February 2019, he was likely to have served his sentence by the time the appeal was heard. Mr Gohulabalan argued that this would be prejudicial to the Prosecution.

Mr Sia, objected to the Prosecution’s application for a stay. He informed the Court that Mr Tay had made arrangements to take leave from work in order to serve his sentence. Having considered the submissions, I granted the Prosecution’s application for a stay. I noted that after the accused was sentenced he had been brought down to the State Court’s lock-up at approximately 2.45 p.m. and he has spent approximately two hours and twenty minutes in the lock-up before the application for the stay was granted.

Mr Tay is currently on bail pending the hearing of the appeal.

PROCEEDED CHARGES

DCN 900028 of 2018 (“first offence”)

You, are charged that you, on 9 June 2016, at about 11.15 a.m., at 6 Kranji Lane, Singapore 728641 (the “workplace”), did abet by instigating one Mamun (FIN: xxx) to intentionally obstruct the course of justice, to wit, by asking the said Mamun to take the blame for a fatal workplace accident that resulted in the death of one Arumugam Elango (FIN: xxx) which occurred on 9 June 2016 at about 10.45 a.m. at the workplace when the said Mamun had not caused the said fatal workplace accident, which offence was not committed by the said Mamun in consequence of your abetment, and you have thereby committed an offence punishable under section 204A read with section 116 of the Penal Code (Cap 224, 2008 Rev Ed).

DCN 900419 of 2018

You, are charged that you, on or about 9 June 2016, being the Site Supervisor of Zap Piling Pte Ltd (UEN: xxx) at a storage yard located at 6 Kranji Link Singapore 728641 (the “Premises”), which was a workplace within the meaning of the Workplace Safety and Health Act (Chapter 354A, 2009 Ed) (the Act“), did without reasonable cause, negligently do an act which endangered the safety of others, to wit, you carried out lifting operation involving a crawler crane at the Premises without a permit-to-work and a lifting plan, thereby endangering the safety of everyone involved in the lifting operation and resulting in the death of Arumugam Elango (FIN: xxx), and you have thereby committed an offence under s 15(3A).

THE FACTS

Mr Tay admitted to the Statement of Facts without qualification. Mr Tay was employed as a Site Supervisor by Zap Piling Pte Ltd (“Zap Piling”). On 6 June 2016, one of Zap Piling’s directors, Mr Tay Tong Tham instructed Mr Tay to perform a functional tests of a bore piling machine at Zap Piling’s premises. The functional tests involved using the bore piling machine to dig four holes using an auger. A boring bucket would then be placed inside the hole to prevent it from collapsing. In addition to Mr Tay, a number of employees from Zap Piling were involved in the functional test. In particular, Mr Arumugam Elango (“Mr Elango”), Mr Sumon A B M (“Mr Sumon”) and Mr Mamun assisted Mr Tay in carrying out the tests.

The functional tests commenced on 7 June 2016 and continued every day till 9 June 2016. Each time the tests were carried out Mr Tay was the supervisor overseeing the operation. On 9 June, Mr Tay decided to shift a boring bucket weighing 4.95 tonnes from one location at Zap Piling’s premises to another location. Mr Tay instructed a worker to use a crawler crane to lift the boring bucket and move it to the new location.

To move the boring bucket to the new location, the crawler crane operator had to manoeuvre the crawler crane along a narrow path that was flanked in parts by bore pile casings that had been stacked unsecured in a pyramidal fashion. During this movement, Mr Elango and placed himself in a space between the bore piling machine and a stack of bore pile casings. Unfortunately, as the crawler crane operator was attempting to place the boring bucket besides some bore pile casings, the boring bucket knocked against the loose bore piling casings causing some of the casings to cascade to the ground. Mr Elango was pinned between the bore piling casings and the bore piling machine. The casings weighed approximately 1.76 tonnes each. Mr Elango succumbed to the injuries he sustained as a result.

As stated above, Mr Tay was the supervisor overseeing the functional tests. Apart from being given the instructions on the task to be carried out, he did not receive any instruction on the safety aspects of the task nor did he seek any information regarding the safety aspects. As the operation to move the boring bucket from one location to another was a lifting operation there was a requirement that Mr Tay apply for a permit-to-work (“PTW”) in conjunction with a lifting plan.

The PTW would have ensured that appropriate safety measures were in place prior to the lifting operation commencing and issues like the risk of collision between the boring bucket and other obstructions along the route of movement could have been addressed and managed. The lifting plan would also have ensured that control measures to minimise dangers and maximise the safety aspects of the lifting operation were in place. By failing to ensure that a PTW was applied for and a lifting plan established and implemented, Mr Tay had committed a negligent act that resulted in the death of Mr Elango.

After the fatal accident, Mr Tay informed Zap Piling’s plant manager, Mr Yong Yoong Kwong about the accident. In response to Mr Yoong’s queries, Mr Tay said that he had not witnessed the accident. It was at this point, approximately 30 minutes after the accident that Mr Yong and Mr Tay decided to persuade Mr Mamun to accept the blame for the accident. During the operation to move the boring bucket, Mr Mamun had been sitting in the cab of an excavator with its digging arm extended. His job that day was to remove soil after the functional tests had been conducted. Mr Mamun was not involved in the operation to move the boring bucket.

At 11.15 a.m. on 9 June 2016, Mr Mamun and Mr Sumon were called to the store area, where Mr Tay “coached Mamun to say that the excavator he was in control of had touched the casings and that the casings had collapsed to the ground and hit the Deceased”. However, Mamun refused to take the blame for the accident. Mr Mamun had also covertly recorded his conversation with Mr Tay and Mr Yong and he would subsequently be exonerated when he gave the recordings to MOM.

Mr Mamun was charged on 17 July 2017 with an offence under section 304A(b) Penal Code² of causing the death of Mr Elango by a negligent act³. He was subsequently charged on 28 August 2018 with an offence under section 15(3A) WSHA⁴. The basis for Mr Mamun being charged were false statements given by Mr Sumon to the police and the Ministry of Manpower (“MOM”) where he stated that he had seen Mr Mamun’s excavator hitting the boring bucket which in turn hit the bore pile casings causing them to collapse to the ground. Mr Sumon subsequently informed MOM that he had not witnessed how the accident had happened and that his earlier statements were false. Mr Sumon said that he “had made the false statements only because Yong had also asked him to do so. He complied with Yong’s instructions out of fear of losing his job”.

Mr Tay admitted that he had neither witnessed the accident nor reasonably believed that Mr Mamun was responsible for the accident. Mr Tay also admitted that he knew that the relevant authorities would investigated the accident and that he had intended to obstruct the course of justice by directing blame for the accident to Mr Mamun, so that he and Zap Piling would not be investigated following the accident. Mr Tay admitted that by asking Mr Mamun to take the blame for the accident he had abetted the offence of intentionally obstructing the course of justice.

ANTECEDENTS

Mr Tay had no previous convictions.

LEGISLATIVE PROVISIONS AND PRESCRIBED PUNISHMENT

The relevant provisions are section 204A and 116 Penal Code: 204A. Whoever intentionally obstructs, prevents, perverts or defeats the course of justice shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both. 116. Whoever abets and offence punishable with...