What was Koh Lian Kok v Public Prosecutor [2024] SGHC 132 about?

Decided on 21 May 2024 by a three-judge High Court, the case was Mr Koh Lian Kok's appeal against his sentence after pleading guilty to a charge under s 12(2) read with s 20 of the Workplace Safety and Health Act 2006. The court addressed benchmark sentences.

Which judges decided Koh Lian Kok v Public Prosecutor [2024] SGHC 132?

The General Division of the High Court comprised Sundaresh Menon CJ, Steven Chong JCA and Vincent Hoong J. Sundaresh Menon CJ delivered the judgment of the court in Magistrate's Appeal No 9111 of 2023, after hearings on 16 February and 1 March 2024.

[2024] SGHC 132 — KOH LIAN KOK v PUBLIC PROSECUTOR

SUPREME COURT OF SINGAPORE

21 May 2024

Case Summary

Koh Lian Kok v Public Prosecutor [2024] SGHC 132

HC/MA 9111/2023

--------------------------------------------------------------------------------------------------------------------------------------

Decision of the General Division of the High Court (delivered by Chief Justice Sundaresh Menon):

Outcome: The General Division of the High Court set out the applicable sentencing framework for offences under s 12(2) of the Workplace Safety and Health Act 2006. The court dismissed the appellant’s appeal against the sentence of four months’ imprisonment, enhancing the sentence to 14 months’ imprisonment.

Background to the appeal

1 The appellant, Mr Koh Lian Kok (“Mr Koh”), was the sole proprietor of Ban Keong Transport Co (“Ban Keong”). Ban Keong was in the business of providing transportation services including the transportation of heavy equipment and machinery. Mr Koh employed lorry drivers as lorry loader operators, who also possessed some form of lorry loader certification. At the material time, none of them were trained as signalmen, riggers or lifting supervisors. On 11 October 2018, an operation executive from JP Nelson Access Equipment Pte Ltd (“JP Nelson”) contacted Ban Keong for the transportation of a boom lift from the vendor of the boom lift to JP Nelson’s workshop.

Facts

2 On 12 October 2018, Mr Koh despatched a lorry loader operator, Mr Ho Man Kwong (“Mr Ho”), to transport the boom lift. When Mr Ho arrived at the Workplace, he was not aware of the weight of the boom lift and was not able to establish this on his own. Mr Ho asked the mechanics employed by JP Nelson that were at the Workplace, Mr Shang Jiawei (“Mr Shang”) and Mr Bee Choo Siong (“the Deceased”), what the boom lift weighed. Mr Shang, who too was unaware of the boom lift’s weight, replied that it could possibly weigh more than three tons. In truth the boom lift weighed 7.08 tons.

3 Mr Ho selected two webbing slings that could only handle a load of two tons each under normal conditions. A forensic engineering assessment showed that the way the webbing slings had been connected to the bow shackles and then rigged further reduced their combined effective load bearing capacity to 3.2 tons or less. Mr Ho controlled the ascent of the boom lift while Mr Shang and the Deceased placed their hands on it to swivel it if necessary. The boom lift was lifted to a height of 0.5m above ground when the webbing slings abruptly snapped. The boom lift fell and struck the Deceased. The Deceased was pronounced dead at the scene.

4 Mr Koh was charged pursuant to s 12(2), read with s 20, of the Workplace Safety and Health Act 2006 (Cap 354A, 2009 Rev Ed) (“WSHA”). Besides Mr Koh, JP Nelson and Mr Ho were charged as well. JP Nelson was charged under s 14A(1)(b), read with s 20, of the WSHA. It was sentenced to a fine of $50,000. Mr Ho was charged under s 15(3A) of the WSHA and was sentenced to five months’ imprisonment. Mr Koh pleaded guilty and was sentenced to four months’ imprisonment by the District Judge (the “DJ”). He appealed against the DJ’s decision and sought a fine in the range of $75,000 to $175,000.

Decision on appeal

5 The death of the Deceased was not accorded significant weight. The Prosecution did not dispute that an agreement had been reached with Mr Koh that the fact of death would not be relied upon at the sentencing stage: at [82]–[83].

6 Notwithstanding any agreement between the parties, the court cannot be prevented from having regard to material facts that are before it: at [84].

7 In the usual case, it would be open to the Court to set aside the plea and remit the matter for a fresh plea to be entered and if appropriate for resentencing if the original sentence had been based on an agreed fact that was not correct. However, given how far along the proceedings had progressed, it was not appropriate to allow Mr Koh to retract his plea and to remit the matter to trial. Accordingly, the appropriate sentence was not based on the fact of death even though it was an inescapable conclusion from the agreed facts that Mr Koh’s lapses caused it: at [85].

8 At the first stage of the sentencing framework, even ignoring the fact of the Deceased’s death, the harm was in the low end of the high category. The potential harm that arose from Mr Koh’s lapses was plainly in the nature of death or very serious injury: at [86].

9 Mr Koh’s culpability was in the high range of the applicable sentencing framework. He utterly failed to perform his duties. He did not deploy any trained personnel who could have supervised, planned, or properly executed the lifting of the boom lift. Instead, he despatched only Mr Ho to the Workplace, even though he was not suitably qualified or trained. Mr Koh also did not implement any safe work procedures. As a consequence, Mr Ho went to the Workplace without any appreciation of the weight of the boom lift to be lifted. Mr Koh’s practice was to only send a single employee to carry out such lifting operations: at [87]–[88].

10 Mr Koh’s breaches were systemic in nature. He conducted his business in a reckless manner that was indifferent to the danger he was posing to others. He invariably sent a single worker to carry out such assignments which was contrary to the applicable regulations. In this case, he charged only $180 for the assignment without even having established the load he was to transport. The nature of his lapses was emblematic of the very behaviour that Parliament intended to curb with the stiffer penalties under the WSHA: at [88]–[89].

11 The fact that Mr Ho and JP Nelson owed certain duties under the WSHA did not diminish the extent of liability that attached to Mr Koh’s lapses: at [90].

12 The principle of parity was inapplicable here. Mr Koh, Mr Ho and JP Nelson were charged under different provisions. The considerations applicable in each charge, such as the role played by the accused and the gravity of breaches, varied: at [91].

13 The indicative starting sentence was a term of 18 months’ imprisonment: at [92].

14 At the second stage of the sentencing framework, Mr Koh’s guilty plea and co-operation with the authorities were mitigating factors. However, his age was not accorded mitigatory weight. The starting sentence was calibrated down to 14 months’ imprisonment: at [94]–[95].

15 In the absence of an appeal by the Prosecution, the power to enhance an offender’s sentence may be invoked if the court concludes that, amongst other things, the sentence imposed was manifestly inadequate. As a matter of judicial self-restraint, the court may normally choose not to enhance the sentence absent an appeal by the Prosecution. But the court will do so where the interests of justice call for such a course: at [102] and [106].

16 An offender’s expectation on appeal is irrelevant to the question of what the appropriate sentence should be: at [108].

17 Mr Koh’s sentence of four months’ imprisonment was set aside and enhanced to 14 months’ imprisonment: at [109].

18 The court observed that the Ministry of Manpower has taken several steps to monitor compliance with the applicable statutory and regulatory provisions on workplace safety and health. However, the figures continue to hover around at least 9,000 breaches annually. This staggering number of breaches might be symptomatic of a pressing problem that requires more stringent enforcement efforts and/or more severe penalties, especially in relation to offenders such as Mr Koh, who in an extreme effort to reduce his operating costs, appeared to have abandoned safety measures altogether: at [113].

Sentencing framework

19 The applicable sentencing framework for offences under s 12(2) of the WSHA was as follows: at [79].

a. At the first stage, the sentencing judge is to determine the level of harm and the level of culpability, in order to derive the indicative starting point according to the following benchmarks:

	Culpability
	Low	Moderate	High
Harm	Low	Fine of up to $75,000	Fine of more than $75,000 and up to $175,000	Fine of more than $175,000 and up to $200,000 or up to 6 months’ imprisonment
Harm	Moderate	Fine of more than $75,000 and up to $175,000	Fine of more than $175,000 and up to $200,000 or up to 6 months' imprisonment	More than 6 months and up to 12 months’ imprisonment
High	Fine of more than $175,000 and up to $200,000 or up to 6 months’ imprisonment	More than 6 months and up to 12 months’ imprisonment	More than 12 months and up to 24 months’ imprisonment

b. In evaluating the level of harm, the court is to have regard to the following factors: (i) the seriousness of the harm risked; (ii) the likelihood of that harm arising; (iii) the number of people likely to be exposed to the risk of the harm; and (iv) the actual harm that was occasioned by the risk that stemmed from the accused person’s negligent act. Where the potential harm was likely to be death or serious injury, the harm could be considered to be high even if it did not materialise. If death or serious injury did occur, the harm would typically be assessed near the top end of the high range.

c. In evaluating culpability, the court may consider the following non-exhaustive list of factors: (i) the number of breaches or failures; (ii) the nature of the breaches; (iii) the seriousness of the breaches – whether they were a minor departure from the established procedure or whether they were a complete disregard of the procedures; (iv) whether the breaches were systemic or whether they were part of an isolated incident; and (v) whether the breaches were intentional, rash or negligent.

d. At the second stage, the starting sentence should be calibrated according to offender-specific aggravating and mitigating factors.

e. Aggravating factors may include the following: (i) the offender evidently lacks remorse; (ii) the presence of relevant antecedents; and (iii) any offences taken into consideration for the purposes of sentencing.

f. Mitigating factors may include the following: (i) the offender has voluntarily taken steps to remedy the problem; (ii) the offender has provided a high level of co-operation with the authorities for the investigations, beyond that which is normally expected; (iii) there is self-reporting, co-operation and acceptance of responsibility; and (iv) there is a timely plea of guilt.

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.

KOH LIAN KOK v PUBLIC PROSECUTOR

Catchwords

Practice Areas

Judges (3)

Counsel (11)

Parties (2)

Case Significance

Summary

What was Koh Lian Kok v Public Prosecutor [2024] SGHC 132 about?

Which judges decided Koh Lian Kok v Public Prosecutor [2024] SGHC 132?

Statutes Cited

Cases Cited (19)

Referenced in

Statutes interpreted in this judgment

Legal concepts & references

Judgment