Our Legal Associates, Muhammad Hibri Nazim and Saif Aslam Lokman together with Mohamad Danial Mohd Firdaus (pupil-in-chambers), under the guidance of Partners, Idza Hajar Ahmad Idzam and Nan Muhammad Ridhwan Rosnan from our Litigation Practice Group (Quasi-Criminal and Personal Injury), successfully represented Indah Water Konsortium Sdn Bhd (“our Client”) before the Sessions Court in Kuala Lumpur in respect of a charge under the Occupational Safety and Health Act 1994 (“OSHA 1994”), where our Client was ultimately discharged and acquitted.
Our Client was charged under Section 15 of OSHA 1994 for allegedly failing, as an employer, to ensure, so far as is practicable, the safety, health and welfare at work of its employee. The charge specifically related to an alleged failure to implement a safe system of work for cleaning operations in a confined space tank, which purportedly resulted in an accident, punishable under Section 19 of the same Act.
At the close of the prosecution’s case, the learned Sessions Court Judge, upon a maximum evaluation of the evidence adduced and submissions by the parties, held that the prosecution had failed to establish a prima facie case against our Client. Accordingly, the Court ordered that our Client be acquitted and discharged without being called to enter its defence.
In essence, we submitted that the prosecution had failed to discharge its burden of proof, inter alia, that:
- our Client was not the employer of the victims at the material time, nor did it exercise the requisite control over them;
- the victims were employees of a third-party contractor and did not fall within the category of persons to whom duties were owed under Section 15 of the OSHA 1994;
- the mere presence of the victims at the site did not, in itself, give rise to liability in the absence of control by our Client;
- in any event, our Client had taken all reasonably practicable steps to ensure the safety, health and welfare at work of its employee, and the incident was attributable to the contractor’s negligence;
- the investigation was materially deficient, including the failure of the prosecution to properly address key safety roles and the alleged falsification of safety records; and
- adverse inferences ought to be drawn against the prosecution for its failure to call material witnesses.
This decision reaffirms that regulatory prosecutions by enforcement agencies are quasi-criminal in nature, and must adhere to fundamental criminal law principles, including the requirement that the prosecution prove each element of the charge beyond reasonable doubt. The prima facie threshold serves as a critical safeguard against unsubstantiated prosecutions.
The team was further supported by members of the Litigation Practice Group, namely Haidhar Hamzi Mohmad Puad, Aiesyah Mohd Mustafa Kamal and Adilah Abdul Wahap.
