We, the undersigned 19 groups and organisations, are appalled that NO director or officer of Zhongshi International Sdn Bhd, a construction company, was charged for causing the death of three migrant workers and seriously injuring another.
It is absurd to simply charge a company, which is but a mere empty vessel that operates and acts in accordance with decisions and directions of directors, officers and human owners of the company. Companies simply pay fines (a tiny sum compared to profits or maybe millions or billions of ringgit), and cannot be imprisoned, and the real human wrongdoers get off scot free.
On 22 March, three Chinese national workers by the name of Wu Tongzheng, Ding Kunfu and Jiang Jinbao died, and another was seriously injured when one of the components of a launching gantry fell at the SUKE elevated highway construction site near Puncak Banyan, Persiaran Alam Damai, Cheras.
The company was charged under Section 15(1) of the Occupational Safety and Health Act 1994 (OSHA), which states:
(1) It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare to work of all his employees.
whereby the penalty is provided in Section 19, which reads:
A person who contravenes the provisions of section 15, 16, 17 or 18 shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.
Failure to charge human decision-makers
Human directors, officers and owners can no longer hide behind the ‘corporate veil’, as even the OSHA provides that where the offence is committed by a body corporate or company, then
…every person who at the time of the commission of the offence is a director, manager, secretary or other like officer of the body corporate shall be deemed to have contravened the provision and may be charged jointly in the same proceedings with the body corporate or severally, and every such director, manager, secretary or other like officer of the body corporate shall be deemed to be guilty of the offence… (Section 52).
On 3 November, the company pleaded guilty to the charge,and was fined RM45,000 by the Sessions Court and paid the fine of RM45,000 only. The decision-makers of any company are all the directors, if not the human owners, and now justice is not served if these human persons responsible for the death of workers are also not made liable and punished for their crimes.
Since the company has already pleaded guilty, we now demand that the directors, manager and other officers be charged, tried and sentenced in court. If found guilty, they will be liable “to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both” (Section 19).
Justice demands an imprisonment sentence for those who failed in their duty to ensure the safety, health and welfare of their workers, noting that three died and one was seriously injured.
Charge directors with culpable homicide not amounting to murder
Assuming that there were no intention to murder, then the perpetrator should at the least be charged with culpable homicide not amounting to murder under the Penal Code, where
… if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death… [Section 304(b)]
With regard to the construction industry, the law and the relevant department like the Construction Industry Development Board provide various regulations, directions and guidelines that need to be complied with to prevent death and injury to workers.
As such, if a construction company chose not to do what is needed, maybe by a selfish reason of saving money or effort, then when a worker is killed as a consequence of this failure, then this may no more be simply an accidental death or even death by negligence, but should be culpable homicide not amounting to murder. Not doing what is needed to ensure workers’ safety, despite knowing that failures can possibly cause deaths and injury, is a serious offence that ought to be punished.
The Penal Code provides, where there is no intention to kill or injure, then the punishment for culpable homicide not amounting to murder shall be imprisonment for a term which may extend to 10 years or with fine or with both.
Increase prison terms and fines
Zhongshi International Sdn Bhd was fined RM45,000, as the penalty provided by law at this time for this offence is “a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both”.
Not just the fine, but also the prison term need to be increased.
The amendment of the OSHA has not happened since 1994.
Finally, the Occupational Safety and Health (Amendment) Bill 2020, tabled in November 2020, was just passed on 27 October 2021 by the House of Representative (Dewan Rakyat). It has yet to be tabled and passed in the Senate.
The amendment will increase the maximum fine from RM50,000 to RM500,000. We urge the government to expedite this amendment to OSHA and speedily put it in force.
Note that being caught for not wearing a face mask during the Covid pandemic has a maximum fine of RM50,000. The maximum fine for occupational safety and health offences needs to be much higher, at least RM1m, with even much higher fines and prison sentences if injury or death is caused by the workplace incident.
- We call for the provision of higher penalties if a worker is injured or worse, killed by reason of non-compliance of an occupational safety and health law. In some jurisdictions, the offence of ‘corporate manslaughter’ has been introduced
- We also call for the abolition of the availability of ‘compounds’ if the offence caused injury or death to the worker or others
- We call for the directors and officers responsible in Zhongshi International Sdn Bhd to be immediately charged and tried under occupational safety and health laws, and even for culpable homicide not amounting to murder under the Penal Code
- We also urge that the court, after a conviction, orders the convicted to pay adequate compensation to the families or dependents of the deceased workers and to injured workers. This should be over and above what they may receive from existing social security or insurance schemes.
Apolinar Z Tolentino, Jr.
‘On behalf of the following 19 groups:
- Workers Hub For Change (WH4C)
- Building and Wood Workers International (BWI) Asia Pacific region
- Banglar Manabadhikar Suraksha Mancha (Masum)
- China Labour Bulletin(CLB), Hong Kong
- Haiti Action Committee
- International Black Women For Wages For Housework
- Malaysians Against Death Penalty and Torture (Madpet)
- Malay Forest Officers Union (MFOU)
- National Union of Transport Equipment and Allied Industries Workers (NUTEAIW)
- Network of Action for Migrants in Malaysia (NAMM)
- North South Initiative
- Odhikar, Bangladesh
- Parti Rakyat Malaysia (PRM)
- Persatuan Sahabat Wanita Selangor
- Sabah Timber Industry Employees Union (STIEU)
- Safety and Rights Society, Bangladesh
- Union of Forest Employees Sarawak (UFES)
- Women of Color/Global Women’s Strike