Soil Investigation Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 19 April 2018
• Neutral Citation: [2018] SGHC 91
• Date: 19 April 2018
• Docket Number: Magistrate’s Appeal No 14 of 2017
• Published date: 08 August 2019
• Plaintiff Counsel: Faizal Shah, Kelvin Chia and Vigneesh Nainar (Lumen Law Corporation)
• Defendant Counsel: Francis Ng SC, Gabriel Choong and Jane Lim (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Hearing Date: 22 January 2018
• Subject Matter: Construction of Statute,Statutory Offences,Criminal Law,Public Utilities Act,Statutory Interpretation

Aedit Abdullah J: Introduction

Soil Investigation Pte Ltd (“the Appellant”) is a company incorporated in Singapore under the Companies Act (Cap 50, 2006 Rev Ed). This appeal (Magistrate’s Appeal No 14 of 2017) is the Appellant’s appeal against conviction for causing damage to a water main under s 47A(1)(b), read with s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed) (“the Act”). In this case, the damage to the water main arose in the course of drilling works carried out by a subcontractor engaged by the Appellant. The main issue in this appeal is whether a main contractor can be held liable for a s 47A(1)(b) offence committed by a subcontractor, by virtue of s 56A of the Act which extends criminal liability to persons other than the primary offender (“secondary liability”).

After considering the submissions of the parties, I am of the view that the Appellant is not liable under s 56A and that the appeal should be allowed.

Facts

The Appellant was awarded a contract (“the main contract”) by the Public Utilities Board (“PUB”) to carry out soil investigation works for the Deep Tunnel Sewerage System Phase 2 project (“the DTSS Project”).¹ The purpose of the soil investigation works was to provide data from boreholes to interpret the ground conditions in the areas where tunnels were to be constructed.² The Appellant was responsible for among others, setting out the borehole locations and carrying out underground detection services.³ The Appellant subcontracted some parts of the works for the DTSS Project, including the drilling in soils, to Geotechnical Instrumentation Services (“GIS”).⁴

On 15 March 2015, GIS commenced drilling works at the location of a borehole. At 6.5m depth from ground level, the driller from GIS, one Parvez Masud, encountered an obstruction and stopped drilling. When Parvez Masud drilled to 6.7m deep at the offset location (600mm from the borehole) the following day, he again encountered an obstruction and water started to gush out.⁵ Investigations revealed that a 900mm in diameter NEWater main belonging to PUB (“the Water Main”) had been damaged.

The Appellant claimed trial to the following charge (“the charge”): ⁶

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 Pervez 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.

The proceedings below

In dispute at trial was whether the Appellant could be liable under s 56A of the Act, for an act committed by its subcontractor in breach of s 47A. Section 47A(1)(b) of the Act reads:

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.

Section 56A of the Act reads:

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.

At trial, the Appellant argued that it was not liable under s 56A of the Act. It submitted that s 56A extends liability only to principals and employers and that the Appellant, being neither a principal nor employer of GIS was not liable under s 56A.⁷ In addition, even if a main contractor could be liable under s 56A of the Act for an offence committed by its subcontractor, the charge was not made out against the Appellant as the statutory defence was applicable since the offence was committed by GIS without the consent or connivance of the Appellant, and the offence was not attributable to the Appellant’s neglect.⁸ The Appellant also argued that the independent contractor defence was applicable, ie, that it was not liable because GIS was an independent contractor (“the Independent Contractor Defence”).⁹

The Prosecution submitted on the other hand that s 56A comprises three limbs and renders an accused liable under any of the following three scenarios: (i) where its agent commits an offence; (ii) where its employee commits an offence; or (iii) where a person subject to its supervision or instruction for the purpose of any employment commits an offence. The Prosecution accepted that GIS was neither an agent nor an employee of the Appellant. It submitted that the third limb was applicable in the present case, ie, that GIS was “being otherwise subject to the supervision or instruction of [the Appellant] for the purposes of any employment”.¹⁰ The Prosecution further argued that the Appellant had not made out the statutory defence as the damage to the Water Main was attributable to neglect on its part.¹¹

The district judge (“the District Judge”) convicted the Appellant of the charge and sentenced the Appellant to pay a fine of $50,000. The District Judge’s Grounds of Decision are provided in Public Prosecutor v Soil Investigation Pte Ltd [2017] SGDC 249 (“the GD”).

In convicting the Appellant, the District Judge found that: A main contractor can be held liable for the acts of its subcontractor under s 56A of the Act. The classes of individuals secondarily liable under s 56A are not limited to only principals and employers. In using the phrase “being otherwise subject to the supervision or instruction of [the defendant] for the purposes of any employment”, Parliament was referring to, among others, offences committed by a subcontractor whom the defendant had supervised or instructed.¹² Such an interpretation of s 56A was aligned with the purpose and object of the statute.¹³ GIS was a subcontractor engaged by the Appellant to carry out drilling works. GIS took instructions from the Appellant on when and where to drill and how deep to drill. GIS also took instructions from the Appellant as to how much to offset when its drilling encountered underground obstructions.¹⁴ The Independent Contractor Defence was irrelevant in the present case. The only defence that the Appellant could invoke was the statutory defence provided under s 56A of the Act.¹⁵ The Appellant could not invoke the statutory defence as the offence was committed due to the negligence of the Appellant. PUB had notified the Appellant that there were PUB water mains located in the vicinity of the site of investigation works for the DTSS Project. The Appellant was given a copy of a PUB service plan (“PUB Plan”) which showed the approximate locations of PUB water mains and also a document on the “Dos and Dont’s” on the Prevention of Damage to Water Mains (“the Guide”). The Appellant did not ascertain the exact alignment of the Water Main and merely instructed GIS to conduct a trial hole and manual hand auger. Contrary to the requirement set out in the Guide, the Appellant also failed to consult PUB when the water mains that were shown in the PUB plan to be in the vicinity of the borehole were not detected when the trial hole was carried out. The offence was therefore committed due to the negligence of the Appellant.¹⁶

On 24 August 2017, the Appellant filed an appeal against the District Judge’s conviction.¹⁷

Submissions on appeal The Appellant’s submissions

On appeal, the Appellant submitted that the District Judge erred in finding that s 56A of the Act extended liability to the Appellant for an offence committed by its subcontractor. The wording of the statute and the explanatory statement to the Public Utilities (Amendment) Bill (No 7 of 2012) suggested that only principals and employers were liable.¹⁸ Therefore, in the present case, there was no liability under s 56A to begin with.

Even if the Appellant fell within a class of persons caught under s 56A, the District Judge erred in finding that the Independent Contractor Defence was irrelevant in the present case. The Appellant relied on the position at common law that vicarious liability is not to be imposed on the acts of independent contractors.¹⁹ It cited in particular the High Court decision in Ng Huat Seng and another v Munib Mohammad Madni and another [2016] 4 SLR 373, which was affirmed on appeal in Ng Huat Seng and another v Munib Mohammad Madni and another [2017] 2 SLR 1074, for the position that vicarious liability does not extend to hirers of independent contractors given that independent contractors carry on business for their own benefit and thus any risk of harm arising from the independent contractor’s conduct should fall on the independent contractor alone. GIS in the present case was an independent contractor and hence the Independent Contractor Defence applied.²⁰ In addition, the District Judge erred in failing to give sufficient weight to the extent of control exercised by the subcontractor GIS in the manner of...