Case Summaries

Public Prosecutor v Soil Investigation Pte Limited [2019] SGCA 46

SUPREME COURT OF SINGAPORE

5 August 2019

Case summary

Public Prosecutor v Soil Investigation Pte Limited [2019] SGCA 46
Criminal Reference No 1 of 2018

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Decision of the Court of Appeal (delivered by Judge of Appeal Tay Yong Kwang):

Outcome: CoA answers Prosecution’s question in criminal reference pertaining to the third limb of s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed) in the negative.

Pertinent and significant points of the judgment

  • The proper interpretation of the third limb of s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed) is that it applies to any person who supervises or instructs a primary offender for the purposes of any engagement, whether or not there is a contract of service (at [51]).

 

Introduction

1          This was a criminal reference brought by the Prosecution for the Court of Appeal to determine the proper interpretation of the third limb of s 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed) (the “Act”).

Background to the criminal reference

2          The respondent was awarded a contract to carry out soil investigation works for the Deep Tunnel Sewerage System Phase 2 project. The respondent subcontracted part of the works to Geotechnical Instrumentation Services (“GIS”). One of GIS’ employees damaged a NEWater main and the respondent was charged with damaging the water main under s 47A(1)(b) read with s 56A of the Act.

3          The respondent claimed trial and was subsequently convicted in the State Courts. The respondent then appealed to the High Court. The High Court Judge (the “Judge”) noted that the appeal turned on whether GIS fell within the third limb of s 56A of the Act as it was undisputed that the first and second limbs did not apply. The Judge considered that the third limb of s 56A of the Act would apply to personnel of the principals and employers who are interposed between the primary offender and the principals or employers or the directing mind and will of the principals or employers. He thus found that the third limb of s 56A would not apply to main contractor-subcontractor relationships. Accordingly, the Judge acquitted the respondent on the charge and found it unnecessary to determine if the statutory defence provided in s 56A was satisfied.

4          The Prosecution brought the criminal reference for the Court of Appeal to determine if the third limb of s 56A limited liability for an offence under the Act committed by a primary offender to only personnel or the directing mind and will of the primary offender’s principal or employer, who act in a supervisory capacity over that primary offender (the “Question”).

The court's ground of decision

5          The Court of Appeal answered the Question in the negative. The court accepted the Prosecution’s argument that the word “employment” in the third limb of s 56A had two ordinary dictionary meanings: (i) a legal relationship in the sense of employment pursuant to a contract of service; and (ii) an engagement or use to do something whether or not there is a contract of service. The context surrounding s 56A led to the conclusion that “employment” in the third limb bore the latter meaning (at [31] and [32]).

6          The legislative purposes of the Act and s 56A aligned with the meaning ascribed by the court. The legislative purpose of the Act was to manage and safeguard Singapore’s water supply, whilst the legislative purpose of s 56A was to extend secondary liability to those who were able to control actions which constitute offences under the Act. The third limb of s 56A thus had to be interpreted to apply to those who supervise or instruct a primary offender pursuant to an engagement, whether or not there is a contract of service, as a contract of service was not a prerequisite for control (at [36] and [37]).

7          The extraneous material on the Act and s 56A confirmed both the ordinary meaning and the legislative purpose of s 56A that the court mentioned. A review of the extraneous material and legislative history of s 56A showed that Parliament had, over the years, consciously expanded the scope of secondary liability under the Act. Parliament’s purpose in extending secondary liability for offences under the Act was clear. It was done in order to better protect Singapore’s water infrastructure, which was crucial for the functioning of our population and our economy (at [38], [45] and [49]).

8          In the light of the legislative purpose and the clear parliamentary intention to expand the scope of secondary liability under the Act, the third limb of s 56A could not be interpreted to limit liability to only those who supervise or instruct in the context of a contract of service. Prior to the introduction of s 56A, the categories of relationships to which secondary liability applied already included main contractor-subcontractor relationships. If the third limb of s 56A was interpreted to limit liability to those who supervise or instruct in the context of a contract of service, liability pursuant to such main contractor-subcontractor relationships would be excluded. This would result in the narrowing of the scope of secondary liability under the Act and would go against Parliament’s expressed intention to better protect Singapore’s water infrastructure (at [50]).

9          The court thus answered the Question in the negative. It set aside the High Court’s acquittal of the respondent and remitted the case to the Judge to decide if the respondent was able to invoke the statutory defence set out in s 56A (at [52]).

 

 

 

This summary is provided to assist in the understanding of the Court’s grounds of decision. 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 grounds of decision.

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