Public Prosecutor v Underwater Contractors Private Limited and another
| Jurisdiction | Singapore |
| Judge | Kaur Jasvender |
| Judgment Date | 31 December 2020 |
| Neutral Citation | [2020] SGDC 299 |
| Court | District Court (Singapore) |
| Docket Number | DSC 900693 & 900695 of 2017, Magistrate’s Appeal Nos. 9769-2020-01& 02, Magistrate’s Appeal No. 9770-2020-01 |
| Published date | 13 January 2021 |
| Year | 2020 |
| Hearing Date | 16 September 2019,30 September 2019,11 August 2020,01 October 2019,17 September 2019,09 May 2019,18 February 2019,17 July 2020,06 May 2019,08 May 2019,18 September 2019,03 October 2019,10 May 2019,03 February 2020,07 May 2019,19 February 2019 |
| Plaintiff Counsel | Delvinder Singh and Shanty Priya (Ministry of Manpower) |
| Defendant Counsel | Alfred Lim and Jaime Lye (Fullerton Law Chambers LLC) |
| Subject Matter | Criminal law,Offence,s 12(1) Workplace Safety and Health Act (Cap 354A, Rev Ed 2009),s 15(3A) Workplace Safety and Health Act (Cap 354A, Rev Ed 2009),Duty of employer to take reasonably practicable measures necessary to ensure safety of employees,Supervisor doing a negligent act which endangers safety of others and himself |
| Citation | [2020] SGDC 299 |
The accused company, Underwater Contractors Private Limited (‘UWC’) was incorporated in 1979. It had been in the ship repair and marine diving industry for 35 years as of the date of the incident. UWC had 18 full-time divers and four diving supervisors at the material time.
The accused, Ng Wei Li, David (Huang Weili, David) (‘David’), has been employed by UWC as a diver since Feb 2013. He was promoted to an assistant diving supervisor in early 2014. Prior to working with UWC, he worked as a commercial diver for about 6 to 7 years.
UWC is alleged to have failed to take reasonably practicable measures in contravention of s 12(1) of the Workplace Safety and Health Act (Chapter 354A) (‘WSHA’) Act, as were necessary to ensure the safety and health of its employees; namely, that it failed to: (a) ensure that adequate safety measures, in respect of safe work procedures, were taken in respect of the process used by the divers; and (b) implement the existing risk control identified in its risk assessment, in contravention of s 12(1) read with s 20 and punishable under s 50(b) WSHA.
Against David, he was alleged to have without reasonable cause performed a negligent act which endangered the safety of others; namely that he instructed the divers under his charge to perform underwater survey works at the vessel when he was aware that the starboard sea chest pumps were in reduced flow, an offence under section 15(3A)WHSA.
I was satisfied that the charge against UWC and David was established beyond a reasonable doubt. UWC was fined $300,000. David was sentenced to 12 weeks’ imprisonment. Both UWC and David have appealed against their conviction and sentence. The prosecution has cross-appealed against the sentence of David. The execution of their sentences has been stayed.
The Case for the Prosecution Agreed factsThe deceased, Kwok Khee Khoon, aged 36 years, was employed by UWC as a diver. On the day of the incident, he was tasked by David to open and clean the gratings of the sea chests by using a scrapper to scrap off the barnacles, and to take photographs to document the works that were carried out at the starboard and port sea chests.
Hartmann Schiffahrts GMBH & CO. KG (‘Hartmann’), the occupier of the vessel MV Frisia Kiel (‘vessel’), engaged Sleipner Shipping Pte Ltd (‘Sleipner’) to carry out underwater survey works for the vessel, which was anchored at the Eastern Working Anchorage. The anchorage is a workplace within the meaning of the WSHA. Sleipner thereafter engaged UWC to carry out the underwater survey works at the vessel. The underwater survey works were scheduled to take place on 4 June 2014 and had to take place on that day to facilitate the vessel’s travel plans.
The underwater works comprised of cleaning and welding works in the starboard and port sea chests, bow thruster, and emergency sea chest (see exh P8 & D22). On 3 June 2014, UWC prepared a risk assessment for the underwater survey works. The risk assessment was submitted to both Hartmann and Sleipner.
On 4 June 2014 at about 12.45pm, David conducted a toolbox briefing for all five divers, including the deceased. The toolbox briefing was conducted at Marina South Pier on board UWC’s workboat SR3039B.
Prior to the toolbox briefing, Hartmann had informed UWC that the port sea chest pump would be shut down and the starboard sea chest pump would be kept in reduced flow. The starboard aft sea chest pump had to be kept running to cool the auxiliary engines of the vessel and provide power to the vessel during anchorage.
David briefed the divers on their respective job scope and informed them to approach the sea chest box with caution. In particular, he told the divers to test the level of suction or water intake rate of the starboard sea chest pump by placing their fins or scrappers at the grating before entering the sea chest box.
After completing the toolbox briefing, David and the divers proceeded to the vessel on two workboats. Upon reaching the vessel at about 2pm, David went on board the vessel with a ‘Diving Safety’ checklist (Annex B to P1). The items that he went through with the Chief Officer, Saijin Sherwin Otico, and the Chief Engineer, Arendt Adam Andrzej, were the following:
The Chief Engineer initially wrote ‘Port in use’. After checking with the engine room, ‘Port’ was struck off. It was amended to ‘in use STDB’. It was agreed that the port pump will be shut down and the starboard pump will be operated at reduced flow, which would result in minimum suction force from the starboard aft sea chest pump. The ‘Diving Safety’ checklist stated that “during an underwater maintenance operation, the master or person-in-charge shall not test the main engines of the vessel or turn the vessel’s propeller or thrusters without obtaining clearance from the diving supervisor”. The diving supervisor referred to was David.
In return, the vessel issued a ‘Diving Operation Safety’ checklist (Annex C to P1) to UWC as follows:
On 4 June 2014 at approximately 2.35pm, the first diving operation commenced with six divers, including the deceased and David. The divers were split between two workboats, with one group working on the starboard bow and welding the anodes at the bow thrusters, while the second group worked on the port aft, cleaning the port sea chest gratings (Annex D). The deceased and Goh Hui Heong (‘Joe’) were in the second group. The work activities proceeded without any incident for 2 hours and 15 minutes.
At about 4.50pm, the divers were informed by the vessel’s crew to stop work for a fire pump testing to be carried out by third-party surveyors. Concurrently, a lifeboat load test was also to be done at the aft of the vessel. The fire pump testing required drawing sea water through the emergency fire pump sea chest.
As such, the divers stopped their diving operations. They went on-board their respective workboats. The workboat SR3039B proceeded to the starboard aft sea chest area and workboat SR3384 to the port aft area while waiting for the testing to be completed.
At about 6pm, the divers were informed by the vessel that the surveyors had completed their surveys and that they could continue with their diving operations. The deceased was paired with Joe. David was paired with Lim Hong Wai Mario (‘Mario’). Saw Kyar Doe (‘Saw’) and Saidon Bin Ibrahim (‘Saidon’) remained on top the workboat SR3039B.
When the diving operation resumed, David and Mario dived first and tested the suction level of the starboard aft sea chest pump by placing their fin and/or scrapper on the sea chest gratings. Both divers were satisfied that the suction level was at a minimal and at the same level prior to 4.50pm and it was safe for conducting underwater work activities. Subsequently, the deceased and Joe tested the suction level at the sea chest gratings and were similarly satisfied that it was safe to enter the sea chest box.
The works to be done in the starboard aft sea chest included chipping off the paint works around the area where the anodes were to be welded, before the new anodes were welded in their positions.
At about 6.05pm, the deceased entered the starboard aft sea chest and assisted David by using his mask light to illuminate the work area where David was carrying out chipping and welding works. The deceased exited the starboard aft sea chest after the chipping and welding works were done without any problem. At the same time, Mario was able to take photographs of the anodes of the vessel and the starboard sea chest pump pipe inlet at a distance of less than 50cm. This showed that the sea chest pump was running at a reasonably low level.
Between 6.10pm and 6.30pm, the deceased entered the starboard aft sea chest two more times to document the completed chipping works and welding of anodes. The deceased exited the starboard aft sea chest without any problem after his second entry (Annex E).
During the deceased’s third entry into the starboard aft sea chest, he took a photograph of chipping and welding works that were completed by David. After David completed the chipping works, the deceased moved away from the starboard sea chest floorboard to make way for David to conduct welding works at the same area. Thereafter, the deceased’s fin hit David, who was in the midst of welding anodes on the starboard sea chest floorboard. David turned and saw that the deceased was being sucked into the pipe orifice.
David managed to grab the deceased’s hand and tried pulling him. The deceased managed to hold on for a few seconds before losing his grip. As David was not able to pull the deceased away from the pipe orifice, he exited the starboard aft sea chest and saw Joe. He signalled to him to enter the starboard aft sea chest to help to pull the deceased out. David then surfaced to the workboat and shouted at Saw to ask the vessel to turn off the valve. David thereafter dived back in and saw Joe struggling to pull the deceased out of the pipe orifice.
Meanwhile, on board the vessel, the vessel’s Third Officer called the engine control room, and informed the Oiler to turn off the valve. As the Oiler did not have the authority to shut down the main sea water pumps, he called the Chief Engineer and informed him of the request.
David thereafter re-surfaced and went on board the vessel. He demanded that the Captain shut down the main sea water pumps. The Chief Officer subsequently called the Chief Engineer to switch off the main sea water pumps. It took approximately 20 minutes and another call from the dive boat to the vessel’s Third Officer before the main sea water pumps were finally shut down.
Several attempts by the other divers to pull the deceased away from the pipe orifice failed. The deceased was finally pulled out and brought...
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