Case Summaries

Mao Xuezhong v Public Prosecutor [2020] SGHC 99

SUPREME COURT OF SINGAPORE

20 May 2020

Case summary

Mao Xuezhong v Public Prosecutor [2020] SGHC 99
Magistrate’s Appeal No 9149 of 2019

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Decision of the High Court of 3 Judges (delivered by Tay Yong Kwang JA):

Outcome: the High Court dismisses the accused’s appeal against conviction and sentence, allows the Prosecution’s appeal against sentence and substitutes the 24 weeks’ imprisonment imposed by the District Judge with a sentence of 12 months’ imprisonment.

Introduction

1 The accused was a formwork supervisor of a construction company, which was contracted to supply labour and tools for reinforced concrete structure work at a construction site. The work included the construction of formwork, the fixing of reinforcement and concrete casting. The accused’s role as a formwork supervisor included the deployment of workers and the assignment of work to them at the worksite.

2 On 20 January 2014, the accused was supervising the lifting of formworks (“table forms”) from the fourth to the fifth floor of the building under construction. Two photographs of such a table form are attached in the Annex below. Md Mastagir Rana (Sohal) Md Aminur Rahman (“the deceased”), Khan Alam (“Khan”) and their co-workers in the construction company were involved in this endeavour.

3 At the material time, the deceased and Khan were working on the fifth floor while their co-workers were working on the fourth floor. The role of the deceased and Khan was to facilitate the threading of the lifting gears through the openings on the table form, by descending onto the top of the table form to guide the lifting gears through the openings. The workers on the fourth floor would then secure the lifting gears to the table form.

4 The workers started in the morning of 20 January 2014, and had lifted about seven or eight table forms in this manner before lifting work was paused as the tower crane had to be deployed for other operations. When the tower crane became available again, the lifting work resumed. The deceased and Khan climbed out beyond the guard rails at the edge of the fifth floor and descended onto the top of the protruding table form. While both the deceased and Khan wore body safety harnesses, only Khan secured his safety harness to the guardrail before the descent. The deceased, who was in front of Khan, walked towards the openings near the top edge of the table form. As he did so, the table form suddenly started to tilt downwards, causing the deceased to slide off the table form and fall to the third floor vehicle ramp. The deceased was brought to a hospital where he succumbed to his injuries four days later.

5 Before the District Judge (“DJ”) below, the accused was tried and convicted for a charge under s 15(3A) of the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”), for (a) instructing two workers under his charge – the deceased and Khan – to descend onto a soffit top of an Aluma formwork when it was unsafe to do so; and (b) failing to ensure that the deceased had anchored his safety harness before descending onto the soffit top. The DJ accepted that the accused, who was the only supervisor on the fifth floor of the building at the material time, instructed the deceased and Khan to descend onto the table form. The DJ found that the accused ignored Khan’s request for a lifeline. The DJ held that the accused was negligent, and that there was no reasonable cause for the accused’s actions. At the sentencing stage, the DJ held that he was bound by the High Court decision in Nurun Novi Saydur Rahman v Public Prosecutor and another appeal [2019] 3 SLR 413 (“Nurun Novi”) and its sentencing framework. Applying the Nurun Novi sentencing framework, the DJ sentenced the accused to 24 weeks’ imprisonment.

6 The accused appealed against his conviction and sentence while the Prosecution appealed against sentence. The Prosecution’s appeal involved submissions calling for a reconsideration of the sentencing framework for offences under s 15(3A) of the WSHA set out in the High Court decision of Nurun Novi.

The High Court’s decision

7 The High Court dismisses the accused’s appeal against conviction and sentence, allows the Prosecution’s appeal against sentence and substitutes the 24 weeks’ imprisonment imposed by the District Judge with a sentence of 12 months’ imprisonment (at [43], [74], [75]).

Appeal against conviction

8 Considering the evidence in totality, the High Court saw no reason to disagree with the DJ’s finding of fact that the accused was present at the material time just before the accident and had instructed the deceased and Khan to descend onto the top of the table form. Khan was neither unsure nor inconsistent in his evidence about the accused being nearby and that the accused gave the instruction to descend. The DJ may have been mistaken on Khan’s evidence about when his two earlier descents took place but what is clear is that Khan had descended onto the top of a table form on two recent previous occasions and on those occasions, he was provided with a lifeline and he did use it to secure himself before making the descent. On the day of the accident, Khan was therefore concerned about his safety and asked the accused for a lifeline but was ignored or rebuffed by him. Had Khan been provided with a lifeline on the day of the accident, he would certainly have used it as he did twice before, consistent with his concern for his safety. Khan was therefore consistent in his evidence before the court. The accused’s statement in Exhibit P11 was inconsistent with his testimony in court where he denied knowing why Khan and the deceased descended onto the table form. The accused’s answers in Exhibit P11 further suggested that it was a standing instruction anyway for the workers to descend onto the top of the table form and the accused was aware of it and had in fact been following that method. He therefore knew that the deceased and Khan would do the same once he “informed Deceased, the signalman and another Bangladeshi worker to go over to prepare for the lifting of the tableform” (at [27], [31], [34]–[37]).

9 The High Court agreed that the accused was negligent in giving the instructions to descend without ensuring that the workers had anchored their safety harness. It may be true that if the interruption in the lifting work had not occurred, there would be workers on the fourth floor securing the table form, such that despite the accused’s negligence, the accident could be averted. However, this does not detract from the accused’s negligence in ordering the descent without ensuring that their safety harnesses were anchored. In any event, the onus was on the accused, as the formwork supervisor, to ensure that the table form was secured properly on the fourth floor before he gave the instructions for the workers on the fifth floor to descend onto the table form (at [38]).

10 There was no reasonable cause for the accused’s actions. Even if there was the alleged practice in the company of stepping out onto the table form for lifting operations, it would be inconsistent with parliamentary intention to find that a supervisor like the accused could be exonerated from liability under s 15(3A) of the WSHA merely because he was following a practice of the company which he knew to be dangerous. In any case, on the facts, there can be no dispute that asking someone to descend onto the top of a movable platform without safety barricades and at that height without securing him to a lifeline was inherently dangerous (at [40]).

11 Although there was a delay of more than three and a half years before the accused was charged, the High Court is satisfied that the accused did not suffer prejudice at the trial (at [43]).

Appeal against sentence

12 The High Court does not endorse the sentencing framework set out in Nurun Novi at [92] for s 15(3A) WSHA offences, as a result of several objections in principle. The Nurun Novi framework, which treats fines and imprisonment as interchangeable and “convertible”, is difficult to justify in principle, as fines and imprisonment are qualitatively different. The “notional upper limits” concept in the Nurun Novi framework was also inappropriate (at [48], [55], [59]–[60]).

13 Instead, the High Court established a sentencing framework for a first-time offender who claims trial to a charge under s 15(3A) of the WSHA. The first step would be to establish the level of harm and the level of culpability in order to derive the indicative starting point, according to a matrix. The second step would be to adjust the starting point sentence according to offender-specific aggravating and mitigating factors that have not yet been factored into the analysis. Both harm (which includes the risk of or potential for harm) and culpability are equally important considerations in the sentencing of s 15(3A) offences (at [64], [67]).

14 Applying the sentencing framework above, the High Court held that there was a high degree of harm involved in this case. The risk of harm was very high, the likelihood of harm was high, and there was significant actual harm caused. The accused’s culpability was high. He put his workers’ lives at risk by instructing them to perform the works in a dangerous manner. He knew that it was a dangerous act for the workers and it was therefore baffling that he could even ignore Khan’s request for a lifeline before the descent. Further, the accused had known, since around 2006, of a safer procedure of lifting table forms which did not involve workers descending onto the table form. However, the accused continued with the practice of instructing his workers to descend onto the top of table forms and had done so on several precious occasions before the accident. Although the accused’s evidence was that it was an existing practice that he merely continued, not started, the accused was in a position of seniority as the formwork supervisor in charge of the lifting operation and could have spoken to his management about the dangerous practice instead of simply continuing with it. The accused’s case therefore falls within the high harm and high culpability sector in the sentencing matrix (at [69]–[71]).

15 As for the offender-specific factors in this case, the High Court noted that the accused showed little to no remorse during the trial. There was however the unexplained delay of more than three and a half years before the accused was informed that he would be charged (at [72]–[73]).

16 Having considered all the circumstances, the High Court is of the view that the appropriate sentence for the accused would fall at the lower end of 12 to 24 months’ imprisonment, and a sentence of 12 months’ imprisonment is appropriate (at [74]).

Annex

SGHC 99 (1)

SGHC 99 (2)

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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