High Court dismisses appeal to review CityOne blast case

Kuching Court Complex.

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By Karen Bong

KUCHING, June 17: The High Court today has dismissed the appeal filed by Department of Occupational Safety and Health (DOSH) prosecution to review the decision of the Sessions Court in discharging CityONE MC Sdn Bhd over the mall explosion case which killed three people in Dec 4, 2018.

High Court judge Dr Alwi Abdul Wahab ruled the appeal be dismissed in upholding the Sessions Court’s decision that the prosecution had failed to establish a prima facie case against the accused company.

CityONE MC was charged for failing to ensure the safety of persons other than its employees during the blast under Section 18(1) of the Occupational Safety and Health Act 1994, which carries a fine not exceeding RM50,000 or imprisonment not exceeding two years, or both, upon conviction.

On Nov 22, 2020, Session Court judge Dayang Ellyn Narisa Abang Ahmad had discharged and acquitted the accused company without calling for its defence.

Throughout the trial, a total of 12 prosecution witnesses had been called to testify against the company.

However, Dayang Ellyn came to the decision after the failure of prosecution to prove whether the accused company had failed to take certain measures that were practicable to ensure that the premises were safe and without risk to health.

The prosecution had submitted that the accused company had knowledge about the hazard or risk and that the risk could have been removed or mitigated by taking certain measures.

But the counsels for the accused company had argued that the accused company could not be expected to have knowledge about the hazard or risk involved and as such removing or mitigating the hazard or risk did not arise.

After assessing the facts and evidence, Dayang Ellyn was persuaded that there was no evidence to indicate the accused company had knowledge of the arrangements between contractors involved to foresee risk of explosion or any accident from happening.

The prosecutor had also not shown any evidence that the accused company failed to implement safety measures required of the owner and tenant.

As such, Dayang Ellyn viewed that there was not an iota of evidence showing that the accused company could have taken measures to make the premises safe against this unanticipated risk.

CityOne MC was defended by counsels Alvin Yong and J.B Singh while DOSH officers Safwan Lokman and Wilson Lee Wui Siang prosecuted.

Counsel David Hii Chin Loung held a watching brief.

Workers O Kui Lim, 49, from Batu Kawa and Tchee Kiam Jong, 24, from Stutong and Chin Hsien Loong, 29 from Butterworth, Penang had died due to the blast on Dec 4, 2018.

The blast that occurred around 3.30pm also caused 41 persons to suffer various body injuries. Four of them were severely injured.

The blast was believed to have been triggered by a leaked gas during renovation work at one of the new eateries inside the mall. — DayakDaily