Khian Heng Construction (Pte) Ltd v Public Prosecutor

Choo Han Teck J:

[2] CS Geotechnic was charged under s 80(4)(a) of the Electricity Act (Cap 89A, 2002 Rev Ed) (“Electricity Act”) for failing to comply with all reasonable requirements of SPPG to prevent damage to high voltage electricity cables. The appellant was charged by way of private prosecution (initiated by the Energy Market Authority) on 16 January 2009 under s 85(2) of the Electricity Act for suffering to be damaged a high voltage electricity cable on 11 November 2006 in the course of carrying out earthworks at Block 129 of the Worksite. Sections 85(2), 80(4) and 80(7) of the Electricity Act state as follows:

The principal issue raised in this appeal was whether the appellant’s charge was proper, namely that it was “in the course of carrying out any earthworks”, an element of the charge preferred against it under s 85(2) of the Electricity Act. It was undisputed that it was CS Geotechnic and not the appellant who was carrying out piling works when the Cable was damaged. The Cable was not damaged when the appellant was digging trial holes. It cannot be said that the appellant had caused or suffered to be damaged a high voltage electricity cable “in the course of carrying out any earthworks”.

[3] The DJ observed that the phrase “in the course of carrying out any earthworks” was specifically introduced by Parliament in s 85(2) of the Electricity Act as the precursor to this provision, s 107(3) of the Public Utilities Act (Cap 261, 1996 Rev Ed) (“Public Utilities Act”) did not contain this phrase. In relation to the word “earthworks”, the DJ found that the appellant had carried out earthworks under s 2 of the Electricity Act when it dug trial holes at the piling locations. Section 2 of the Electricity Act defines “earthworks” as follows:

The question then remains as to whether the appellant can be said to have been in the course of carrying out any earthworks (all of which require an active act of excavating, boring, dredging, etc as defined in s 2), identified to be the digging of the trial holes, when the Cable was damaged by CS Geotechnic. Interpreting this phrase, the DJ accepted that a “plain and simple” reading should be adopted so as to ensure consistency with the natural and ordinary meaning of the phrase and to give effect to Parliament’s will and intent. In interpreting the phrase “in the course of carrying out any earthworks”, the DJ observed that it was to be read together with the phrase “suffered to be damaged”. Notwithstanding the fact that the appellant did not directly cause any damage to the Cable, the DJ took the view that the appellant suffered to be damaged the high voltage electricity cable in the course of carrying out earthworks as “earthworks” must be viewed as a “continuum of activity” beginning with the digging of trial holes and ending with CS Geotechnic’s piling works, the latter of which damaged the Cable. The DJ stated that it was “overly pedantic” to regard “earthworks” as merely the piling works. With respect, while digging trial holes can be regarded as “earthworks”, as no damage can be said to have been caused or “suffered to be caused” to the Cable at the time the appellant was carrying out the earthworks, reading the two requirements together, I was not satisfied that the actus reus of the charge had been made out. First, to interpret the phrase “earthworks” as activity which includes all conduct of independent parties involved in any construction project from the commencement of the project to the moment of damage as one unbroken chain of events is to read the statutory provision too widely. If the DJ’s construction of s 85(2) is correct, any party involved in undertaking “earthworks” until the moment of damage, a widely defined term under s 2 of the Electricity Act, notwithstanding their lack of involvement in or proximity to the actual damage would be held as liable as the party who directly damages the high voltage electricity cable. This interpretation of s 85(2) can only be justified in an agency context wherein the agent and principal are held to be equally liable. In fact, s 85(3) of the Electricity Act provides for precisely this situation:

The DJ found CS Geotechnic to be an independent contractor. Thus contrary to his own finding, the DJ’s interpretation of the phrase “in the course of carrying out any earthworks” resulted in both the appellant and its independent contractor CS Geotechnic being found (at the very least) equally liable for the damage to the Cable, in effect subsuming s 85(3) under s 85(2) of the Electricity Act. This result is particularly incongruous in the light of the fact that CS Geotechnic was not even charged under the same section as the appellant and was fined a substantially lower sum of $30,000 under s 80(4) of the Electricity Act. Second, I am of the view that the insertion of the phrase “in the course of carrying out any earthworks” by Parliament was intended to narrow the ambit of this section and to impose a higher penalty (the precursor provision had a maximum fine of $200,000) on individuals who actually cause damage to the high voltage electricity cables. By way of comparison, s 107(3) of the Public Utilities Act stated as follows (“precursor provision”):

It is clear that if the appellant had been charged under the precursor provision, its act of instructing CS Geotechnic to commence piling works could have been said to have “suffered to be damaged” the Cable. Thus, if the phrase, “in the course of carrying out any earthworks” found in s 85(2) of the Electricity Act was interpreted to include a continuum of activity preceding any damage being caused to a high voltage electricity cable, it would render this phrase nugatory; causing a reversion to the wider ambit envisioned in the precursor provision. However, this is not to say that there is no provision applicable to the appellant’s conduct. I am of the view that s 80(4) of the Electricity Act (the provision under which CS Geotechnic was charged and convicted) would have been a more appropriate provision applicable to the appellant’s act, ie the failure to contact LCDW Tan to ensure that no further trial holes needed to be dug before piling works were commenced. In other words under s 80(4)(b) of the Electricity Act, it could have been argued that the appellant owed a duty to SPPG to take all reasonable precautions, which could have included contacting LCDW Tan to ensure that notwithstanding the signals he observed, that piling works could be safely commenced. On the other hand, in my view, s 85(2) of the Electricity Act was intended to apply to parties like CS Geotechnic. In my view, such a reading of the provisions is also consistent with the relative culpabilities of both parties and the distinct types of liability envisioned under ss 85(2), 85(3) and 80(4) of the Electricity Act.

[4] I am not inclined to amend the appellant’s charge for one under s 80(4) of the Electricity Act due to the substantial difference in the nature of the charges and the elements to be proven. As observed in Garmaz s/o Pakhar and another v Public Prosecutor [1996] 1 SLR(R) 95 at [29]: