Case Summaries

Seng Foo Building Construction Pte Ltd v Public Prosecutor

SUPREME COURT OF SINGAPORE

28 October 2016

Media Summary

Magistrate’s Appeal No 9099 of 2015

Seng Foo Building Construction Pte Ltd v Public Prosecutor [2016] SGHC 243  

___________________________________________________________________

Background

1 In Seng Foo Building Construction Pte Ltd v Public Prosecutor [2016] SGHC 243, the High Court dismissed a contractor’s ("the appellant") appeal against the decision of a district judge. The appellant had been fined a total of $60,000 for two offences under s 80(4)(a) and s 85(2) of the Electricity Act (all statutory references refer to this Act). The appeal was filed on the basis that the sentence was manifestly excessive.

2 A person who conducts earthworks (eg, excavation) in the vicinity of high voltage electricity cables must perform various obligations in the Act. These include the duty to comply with the "reasonable requirements" (see s 80(4)(a)), which are stipulated by SP PowerGrid Ltd to prevent damage to the cables. Non-compliance with this duty can bring a maximum fine of $100,000 or up to five years’ jail, or both (see s 80(7)). Further, any person who damages the cables in the course of performing earthworks can be fined up to $1m, or jailed up to five years, or both (see s 85(2)).

3 Between 2010 and 2016 (as at 1 July 2016), there were 37 convictions under s 80(4) and s 85(2). In 1999, Parliament noted that damage to high voltage cables can result in serious consequences to the economy.1 Past cases include one in October 2013, where the cable damage caused a voltage dip which affected the major industries in the western part of Singapore and drew 62 complaints. The cable repair costs were about $245,000. 

4 In the course of arriving at its decision in the present case, the High Court resolved three issues. First, the court laid down some sentencing considerations for the first time for each of the two offences. Second, the court commented that in cases where the offender pleads guilty at an early stage, it is important that the sentencing judge has adequate information to arrive at the proper sentence. Third, the court observed that the two offences are often brought in tandem against a contractor, given that it is usually the contractor’s failure to follow the reasonable requirements that leads to the cable damage. In this regard, the court considered whether the principles that limit the impact of multiple imprisonment terms were also applicable to prevent excessive punishment of an offender who is sentenced to multiple fines.

The facts

5 The appellant was the main contractor for addition and alteration works to a multi-storey car park in Woodlands. On 15 February 2013, its site supervisor instructed its sub-contractor’s excavator operator to remove steel plate shoring. The supervisor informed the operator that there was an electricity cable in the vicinity. At some point during the excavation, sparks were emitted from the trench. It was subsequently confirmed that the appellant had damaged a 6.6 kilovolt high voltage electricity cable while carrying out excavation works. The damage to the cable caused a power outage lasting about two minutes, which affected 214 households in three HDB blocks. The cost of repair amounted to about $5,700. The reasonable requirements that the appellant was charged with failing to comply with were: (a) provide adequate and prominent signs to show cable positions; and (b) cable positions must be clearly indicated at all times during the entire duration of the earthwork activities.

Judgment

8 The High Court dismissed the appeal. The $15,000 fine that the district judge imposed for the s 80(4)(a) offence was not manifestly excessive. Neither was the $45,000 fine that was imposed for the s 85(2) offence manifestly excessive. Taken together, the cumulative fine of $60,000 was not excessive as well. 3

Reasons for the judgment

9 On the sentencing considerations for the offence in s 80(4)(a), the court noted that Parliament’s intention in imposing the statutory duties in s 80(4) is to ensure that contractors do their part to prevent damage to high voltage cables. This is due to the potentially grave repercussions that can result from damage to such cables. It is well within the powers of the contractor, who can and should be discouraged from cutting corners and taking risks, to observe these duties. The contractor’s culpability is a relevant consideration, which should be ascertained by considering how extensively and egregiously it had breached the various requirements in s 80(4). The greater the extent of non-compliance, the heavier the punishment should usually be. Where harm has been caused, this may also be viewed as an aggravating factor, provided that a separate charge under s 85(2) is not brought. To take the fact of harm into account in such a case is not unfair as it is within the contractor’s contemplation that its failure to follow the legislated procedures comes, almost inevitably, with an increased risk of damage to a high voltage cable. This can in turn trigger wider repercussions.

10 Based on the available facts, the court leaned towards the view that the appellant’s failure to comply with the reasonable requirements was egregious. However, the court made no definitive findings as there was insufficient information and the Prosecution did not appeal the fine amount. Nevertheless, the court was satisfied that the fine for the s 80(4)(a) offence was not manifestly excessive.

11 On the sentencing considerations for the offence in s 85(2), the court noted Parliament’s concern over the severe impact that voltage dips could have on industries. The court held that the punishment for this offence should be calibrated based on the (a) culpability of the offender and (b) extent of the harm that arises from the cable damage. The extent of harm entails consideration of the (i) cable damage and (ii) consequential damage as a result of the damage. The presence of consequential damage warrants a significant step up in the severity of the harm, which should be reflected in the punishment. For example, where the cable damage interfered with production lines, this would be much more serious than the inability of some domestic consumers to use electrical appliances. However, the position may be different where residents have been trapped in lifts for a long period of time as a result 4

of the damage. In the present case, the appellant paid about $5,600 for repairs, which suggested that the cable damage was not particularly serious. However, consequences ensued – while the appellant said that the cable was merely "grazed", this contact was serious enough to cause a power outage that affected 214 households for two minutes. The court also had regard to the sentencing range for this offence which extends to a fine of $1m and/or a term of imprisonment of up to 5 years and concluded in all the circumstances that the fine of $45,000 which was at the relatively low end of the available sentencing range was not manifestly excessive.

12 The court then considered whether two principles that limit the impact of multiple imprisonment terms were also applicable to prevent excessive punishment of an offender who is sentenced to multiple fines. The two principles are the one-transaction rule and the totality principle. This issue arose because the appellant, in seeking reductions to the fines, submitted that both offences were part of one transaction, as the failure to comply with the reasonable requirements led to the cable damage. The one-transaction rule contemplates that where two or more offences are committed in the course of a single transaction, all sentences for these offences should generally be concurrent rather than consecutive. As multiple fines are cumulative, the concern is that where the court has to impose separate fines for each offence, with no limit, the aggregate fine will be out of all proportion to the gravity of the offences committed.

13 After reviewing the one-transaction rule, the relevant legislation and case authorities, the court concluded that the one-transaction rule cannot be applied when the court imposes multiple fines. However, the court noted that the concern underlying the one-transaction rule (ie, of unfairness arising from double or excessive punishment), can nevertheless be addressed within the application of the totality principle. The totality principle is a rule that requires the sentencing judge to take a "last look" at the facts and circumstances, and be satisfied that the aggregate sentence is sufficient and proportionate to the offender’s overall criminality. Therefore, if the sentencing judge considers that the cumulative sentence of fines is excessive, he or she can adjust the individual sentences, subject to statutory provisions to the contrary. 5

14 On the facts, the court did not accept the appellant’s submission that both offences were part of one transaction. This means that the concern underlying the one-transaction rule was not engaged. In applying the totality principle, the court found that further adjustments to either fine were not necessary.

* 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.

1 Singapore Parliamentary Debates, Official Report (18 August 1999) vol 70 at cols 2159–2163 (BG George Yong-Boon Yeo, Minister for Trade and Industry).

2 Public Prosecutor v ED. Zublin AG (MSC 90086-2014 and anor) (unreported) (6 February 2015).


YOU MAY ALSO BE INTERESTED IN