Seng Foo Building Construction Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 October 2016
• Neutral Citation: [2016] SGHC 243
• Plaintiff Counsel: Raymond Lye and Ashley Phua Xin Jie (Union Law LLP)
• Date: 28 October 2016
• Docket Number: Magistrate’s Appeal No 9099 of 2015
• Hearing Date: 12 July 2016
• Subject Matter: Sentencing,Criminal Procedure and Sentencing,Principles
• Year: 2016
• Defendant Counsel: Ruth Teng and Ho Lian-Yi (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 243
• Published date: 01 November 2016

Sundaresh Menon CJ: Introduction

This is an appeal against the decision of the learned district judge (“the DJ”) in Public Prosecutor v Seng Foo Building Construction Pte Ltd [2016] SGMC 7 (“the GD”). The appellant, Seng Foo Building Construction Pte Ltd (“Seng Foo”), pleaded guilty to two charges under the Electricity Act (Cap 89A, 2002 Rev Ed). Seng Foo was prosecuted for damaging a high voltage electricity cable in the course of excavation works it carried out on 15 February 2013. The incident resulted in a brief power outage of about two minutes which affected 214 households. For the first charge, which was the failure to comply with the requirements imposed by SP PowerGrid Ltd (“SP PowerGrid”), Seng Foo was fined $15,000 (“the s 80(4)(a) offence”). Seng Foo was separately fined $45,000 for the second charge, which pertained to causing damage to the cable (“the s 85(2) offence”). Seng Foo appealed the total fine of $60,000 as being manifestly excessive.

Having heard the parties and considered their submissions, I dismiss the appeal. I have set out the detailed grounds for my decision in this judgment for several reasons. First, when reviewing the parties’ submissions, I found a lack of clarity in the precedents. I therefore take this opportunity to set down some sentencing considerations for offences under s 80(4)(a) and s 85(2) of the Electricity Act, which are often brought in tandem against an errant contractor.

Second, it is common for the errant contractor to enter a guilty plea in such cases. It is important that the sentencing judge has access to the relevant facts so that due regard may be had to the pertinent sentencing considerations. A key source of these facts will be the Statement of Facts (“the SOF”), and it would be helpful if the SOF includes facts that may bear on sentencing. I explain this further in this judgment.

Third, this case raises the issue of whether, and if so, how one of the important limiting principles of sentencing applies to an offender who is convicted of multiple charges attracting fines. In the context of multiple offences attracting imprisonment terms, the one-transaction rule and totality principle are two limiting principles which can help the sentencing judge decide which sentences should be ordered to run concurrently and consecutively, so that the overall sentence is proportionate to the offender’s criminality as a whole. The question in the present case is whether these principles, in particular the one-transaction rule, can and should apply to reduce the overall fine that is to be imposed. Before I turn to these matters, I begin with a brief description of the facts.

Background facts The SOF

Seng Foo was the main contractor for addition and alteration works to a multi-storey car park. It engaged a subcontractor, which in turn hired an excavator operator to conduct earthworks at a worksite in Woodlands Street 41. Seng Foo’s liability for the actions of the excavator operator is not disputed.

SP PowerGrid, being an electricity licensee of the Energy Market Authority of Singapore, has control and management over high and low voltage electricity cables in Singapore.

On 27 August 2012, Seng Foo notified SP PowerGrid that it was commencing earthworks in the vicinity of high voltage cables. Before such earthworks begin, a contractor is required to submit a “Notice for Commencement of Earthworks Within Vicinity of High Voltage Cables”. This was duly done and SP PowerGrid responded by issuing a Letter of Requirements dated 28 August 2012. The Letter of Requirements required Seng Foo to comply with, among other procedures, the following:

2.9 Provide adequate and prominent signs to show cable positions. Pegging and markings by the Licensed Cable Detection Worker (LCDW) must be durable and prominent. Ensure cable route markings are not disturbed, removed or tampered with and that the markings are reapplied from time to time to ensure they remain conspicuous.

2.33 Cable positions must be clearly indicated at all times during the entire duration of the earthwork activities. If necessary, the LCDW should be called to reconfirm cable positions before reapplying pegs and surface markers on the ground or inside trenches, where cables are still unexposed.

[emphasis added]

The material parts of the SOF are as follows:

…

(c) On 15 February 2013, [Seng Foo’s] Site Supervisor, Ong Kian Heng (the “Supervisor”) instructed [the subcontractor’s] Registered Excavator Operator, Dharmalingam Jayakumari (the “REO”) to remove the steel plate shoring and to backfill the lift pit wall (the “Lift Pit Wall”). In doing so, the Supervisor informed the REO that there was an electricity cable in the vicinity, i.e. about 2 metres from the Lift Pit Wall. (d) In order for the REO to remove the steel plate shoring, he had to excavate the earth on both sides of the steel plates. (e) At about 8.30am on the same day, the REO started excavating the earth between the steel plate shoring and the foundation. This was completed at about noon. (f) On the same day after lunch, under the Supervisor’s supervision, the REO continued excavating at the other side of the steel plate shoring where the Supervisor had previously informed the REO that there was an electricity cable within the vicinity. While doing so, the Supervisor noticed some lean concrete in the trench obstructing the excavation. The Supervisor then instructed the REO to stop work while he checked on the lean concrete. (g) Upon checking, the Supervisor instructed the REO to resume excavation. While the REO was excavating further, both the Supervisor and the REO noticed sparks emitting from the trench. The Supervisor then instructed the REO to stop work immediately. (h) It was subsequently confirmed that [Seng Foo] had damaged a 300mm2, 3-Core, Cross-Linked Polyethylene, 6.6 kilovolt high voltage electricity cable (the “Cable”) while carrying out excavation works.

In relation to the 1st Charge:

(i) [Seng Foo] failed to provide adequate and prominent signs to show cable positions. (j) [Seng Foo] also failed to clearly indicate the cable positions at all times during the entire duration of the earthworks. (k) Accordingly, [Seng Foo] had failed to comply with [SP PowerGrid’s] Requirements and has thereby committed an offence under Section 80(4)(a) of the [Electricity] Act.

In relation to the 2nd Charge:

(l) In the course of carrying out the aforesaid earthworks, on 15 February 2013, the 6.6 kilovolt high voltage Cable, which was part of the transmission network under the management of [SP PowerGrid], was damaged by the REO under the instructions of [Seng Foo’s] Supervisor. (m) Accordingly, [Seng Foo] has committed an offence under Section 85(2) read with Section 85(3) of the [Electricity] Act. (n) The damage to the Cable caused a power outage lasting about 2 minutes which affected 214 households in 3 HDB blocks. (o) The cost of repair amounted to $5,738.11 which has been fully paid by [Seng Foo].

[original emphasis omitted]

The first charge – the s 80(4)(a) offence

The charge for the s 80(4)(a) offence reads:

You … are charged that you, on or around 15 February 2013, did carry out earthworks at Woodlands Street 41 beside Block 406A, Singapore, which was within the vicinity of a 6.6 kilovolt high voltage electricity cable that is under the management of SP PowerGrid Ltd, an electricity licensee, without complying with the reasonable requirements of SP PowerGrid Ltd set out in their Letter of Requirements to you dated 28 August 2012, to wit, by:- (a) Failing to provide adequate and prominent signs to show cable positions; and (b) Failing to indicate clearly the cable positions at all times during the entire duration of earthwork activities,

and you have thereby committed an offence under Section 80(4)(a) of the Electricity Act (Chapter 89A) and punishable under Section 80(7) of the Electricity Act (Chapter 89A).

The second charge – the s 85(2) offence

The charge for the s 85(2) offence reads:

You … are charged that you, on or around 15 February 2013, were the main contractor undertaking the “Addition & Alteration Works to Multi-Storey Car Parks” project, in which one Dharmalingam Jayakumari, an excavator operator in the employ of Wan Sheng Hao Construction Pte Ltd, who was subject to your instructions for the purpose of carrying out earthworks at the worksite at Woodlands Street 41 beside Block 406A, Singapore, damaged a 6.6 kilovolt high voltage electricity cable in the transmission network under the management of SP PowerGrid Ltd, an electricity licensee, while in the course of carrying out the said earthworks, and by virtue of Section 85(3) of the Electricity Act (Chapter 89A), you have committed an offence under Section 85(2) of the said Act.

Section 85(3) of the Electricity Act states that where an offender is subject to the supervision of another person, that other person is equally liable for the same offence. Therefore, s 85(3) operates to attribute the acts of the excavator operator to Seng Foo. Seng Foo accepts this.

The decision below

The DJ imposed a fine of $15,000 for the s 80(4)(a) offence and one of $45,000 for the s 85(2) offence. The aggregate fine was $60,000.

The DJ prefaced his grounds by noting that there had been many prosecutions before the State Courts against errant contractors for damaging gas pipes and electricity cables, and for failing to comply with reasonable requirements imposed during the course of works. However, he considered that these accidents were largely avoidable. He observed that fines of “sufficient gravity and weight” should be imposed in such cases to serve the needs of specific deterrence, and more importantly, general deterrence (the GD at [2]).

The DJ relied on the decision of the High Court in JS Metal Pte Ltd v Public...