PUBLIC PROSECUTOR V SOIL INVESTIGATION PTE LTD [2019] SGCA 46
In the recent decision of PP v Soil Investigation Pte Ltd [2019] SGCA 46 (“PP v SIPL”), the Court of Appeal set aside an acquittal of the main contractor for an offence committed by its subcontractor.
Background. Soil Investigation Pte Ltd (“the Respondent”) was engaged by PUB 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”).
While drilling at a borehole, GIS damaged a 900mm diameter NEWater main at a depth of 6.7m. The Respondent, being the main contractor, was charged for causing the water main to be damaged under section 47A(1)(b) read with section 56A of the Public Utilities Act (Cap 261, 2002 Rev Ed).
The Respondent was convicted in the State Courts but was acquitted on appeal to the High Court. The Public Prosecutor then referred a question of law of public interest arising out of the High Court’s decision to the Court of Appeal.
Question of law of public interest. The question of law of public interest concerned the interpretation of section 56A of the Public Utilities Act, which states:
“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.”
Section 56A imposes secondary liability on an accused for offences committed by any person:
· Acting as agent of the accused (“first limb”);
· Acting as employee of the accused (“second limb”); or
· Being otherwise subject to the supervision or instruction of the accused for the purposes of any employment (“third limb”).
It was not disputed that GIS’s employees were not agents or employees of the Respondent, and the case turned on whether GIS’s employees fell within the third limb.
The question of law framed by the Public Prosecutor was, “Does the third limb of s 56A of the [Act] limit 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 acts in a “supervisory capacity over” that primary offender?”
High Court’s interpretation. In the High Court, it was held that the third limb covers “managers, foremen and the like”, and not main contractors, because subcontractors “… receive instructions or supervision from main contractors, if any, pursuant to contracts of services between the parties and are not subject to their supervision or instructions “for the purposes of any employment”…” ([9] PP v SIPL). The High Court acquitted the Respondent as “neither GIS nor Parvez Masud was instructed or supervised by the respondent for the purposes of employment.” ([12] PP v SIPL).
Court of Appeal’s interpretation. The Court of Appeal agreed with the Prosecution’s argument that “employment” in the third limb has a broad meaning, so that secondary liability is imposed “… on any person who supervises or instructs a primary offender for the purposes of any engagement, whether or not there is a contract of service.” ([31] PP v SIPL).
The Court gave significance to word “otherwise”, so the third limb is meant to be contrasted with the first and second limbs which apply to technical, legal relationships, and also held that the phrase “any employment” suggested that the third limb was intended to have a broad scope ([34] PP v SIPL).
The Court of Appeal held that in line with the purpose of the Public Utilities Act to manage and safeguard’s Singapore water supply, the purpose of section 56A “… is to extend secondary liability to those who are able to control actions which constitute offences under the Act…”, and that “… A contract of service is not a prerequisite for control. …” ([36] – [37] PP v SIPL).
The Court of Appeal had regard to the parliamentary debates and legislative history of the Public Utilities Act, which showed that Parliament had consciously expanded the scope of secondary liability over the years, and that similar provisions were explicitly said to apply to offences committed by subcontractors. Thus, if the third limb of section 56A was limited to supervision or instruction in the context of a contract of service, “… 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.” ([50] PP v SIPL).
The Court of Appeal therefore answered “No” to the question of law of public interest, and remitted the case to the High Court to determine if the statutory defence in section 56A was available to the Respondent.
Significance. This case is a reminder that main contractors can be liable for the offences committed by their subcontractors if that is intended by the statute, even though subcontractors are not employees in the strict sense. Similar wording to section 56A of the Public Utilities Act can also be found in the Sewerage and Drainage Act and the Telecommunications Act. When it comes to works relating to essential services infrastructure, main contractors should consider taking appropriate precautions to reduce or address the risk of the subcontractor’s acts being attributed to main contractor.
Tags: Statutory interpretation, secondary liability for offences; public infrastructure
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