The existing practice of the courts to mete out only fines to those who endanger the safety of others at the workplace needed to be reviewed, said a High Court judge, as he handed down the first jail sentence for such an offence yesterday, signalling the serious view the court will take of such wrongdoing.
In sending a construction foreman to jail for 25 weeks, Justice Chan Seng Onn also laid out sentencing guidelines for future cases.
Under this framework, those who commit safety breaches involving a high degree of culpability and high potential for harm can expect a starting point of about 16 weeks’ jail.
In his judgment, he said sentences imposed in past cases did not sufficiently deter people from breaching workplace safety rules.
Under the Workplace Safety and Health Act, a person who carries out a negligent act that endangers the safety of himself or others at work can be fined up to $30,000 or jailed for up to two years, or both.
However, since the provision was introduced in 2011, no one has been sent to jail, even though there have been at least 17 cases in which the negligent acts resulted in deaths.
Fined for workplace deaths
While operating an excavator, a construction site agent slewed the machine anti-clockwise without checking to make sure no one was nearby.
A worker was hit by the rear of the excavator chassis and died as a result.
The offender, who was not authorised to operate the excavator at the worksite and had been warned not to do so, was fined $10,000.
A site supervisor decided to dismantle the components of a crawler crane while he and his workers were waiting for transport.
During the dismantling of the crane – a dangerous task that can only be carried out by approved crane erectors – a worker removed a safety pin from the boom.
The boom collapsed and struck the worker, pinning him to the ground. He was later pronounced dead.
The offender was fined $10,000.
A safety coordinator and site supervisor told his team to erect a working platform underneath a flyover even though he knew that they were not trained to do so.
The four workers were left to carry out the work without any scaffold supervisor and without being briefed on the design for the platform.
They fell from a height of 6.4m after a section of the platform they were standing on dislodged and dropped to the ground.
One of them died, while the others were seriously injured.
The offender was fined $12,000.
After looking at the past cases, Justice Chan agreed with the prosecution that the full sentencing range for this particular offence had not been fully utilised.
He noted there were “several cases where the accused persons appeared to have a relatively high degree of culpability, committed breaches which created a high potential for harm, and where the breaches resulted in death, and yet all accused persons received fines in the region of $5,000 to $12,000”.
The fact that the sentences meted out so far have clustered around the lower end of the sentencing range set by Parliament also did not give effect to the legislative intent of the law, which was to improve workplace safety by deterring risk-taking behaviour, he said.
The case involves Nurun Novi Saydur Rahman, a Bangladeshi national, whose negligence in a worksite accident in 2014 resulted in the death of two workers. After a trial, Nurun was found guilty and fined $15,000.
The prosecution appealed, the first time such an offence had been brought before the High Court. The prosecution asked the court to issue sentencing guidelines for the offence, arguing that the current precedents needed to be reviewed.
The prosecution asked Justice Chan to build on the sentencing framework laid down earlier by another High Court judge in the case against Nurun’s employer, GS Engineering & Construction Corp, over the same fatal accident.
In December 2016, Justice See Kee Oon set out a sentencing framework for corporate offenders who breach their duty to ensure employees’ safety, after concluding that the fines imposed in past cases had been too low.
In his framework for individual offenders, Justice Chan crafted a grid of starting-point sentences based on three increasing levels of potential harm and three increasing levels of culpability. The final sentence would be adjusted according to the aggravating and mitigating factors of each case, including the impact of any actual harm.
Justice Chan said if death is caused, an additional eight to 40 weeks’ jail should be added, depending on the number of fatalities. If serious injury is caused, an additional sentence of up to 10 weeks’ jail, or the equivalent in fines, may also be added.
In Nurun’s case, the judge found his starting-point sentence to be 13 weeks’ jail as his actions had high potential for harm and medium culpability. Justice Chan added 12 weeks’ jail, taking into account that two deaths were caused.