Arts Niche Cyber Distribution Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 14 July 1999
• Date: 14 July 1999
• Docket Number: Magistrate's Appeal No 307 of 1998
• Court: High Court (Singapore)

Arts Niche Cyber Distribution Pte Ltd

Plaintiff

and

Public Prosecutor

Defendant

[1999] SGHC 188

Yong Pung How CJ

Magistrate's Appeal No 307 of 1998

High Court

Criminal Procedure and Sentencing–Appeal–Reversal of trial judge's decision–Applicable principles–Whether trial judge's finding of fact plainly wrong–Criminal Procedure and Sentencing–Sentencing–Appeal–Interference with trial judge's sentence–Whether sentence manifestly excessive–Employment Law–Employer's duties–Central Provident Fund–Employer failing to contribute to employee's CPF account–Whether Prosecution's witnesses were employees at prescribed time–Section 58 (b) Central Provident Fund Act (Cap 36, 1997 Rev Ed)–Evidence–Witnesses–Defence counsel's failing to put substantial parts of defence to Prosecution's witnesses during cross-examination–Rule in Browne v Dunn–Effect of failure–Whether defence counsel's frequent failures inadvertent–Provident Fund–Contributions–Employer failing to contribute to employee's CPF account–Whether Prosecution's witnesses were employees at prescribed time–Section 58 (b) Central Provident Fund Act (Cap 36, 1997 Rev Ed)

The appellant company (“Arts Niche”) was charged in the Subordinate Courts with three counts under s 58 (b) of the Central Provident Fund Act (Cap 36, 1997 Rev Ed) (“CPF Act”) of failing to pay contributions to the Central Provident Fund (“CPF”) for January 1998 in respect of three employees (“Ong”, “Wan” and “Aw”). The only issue at trial was whether Ong, Wan and Aw were in fact still employees of Arts Niche in January 1998 within the meaning of the CPF Act. The trial judge found that Ong, Wan and Aw were employees of Arts Niche in January 1998. Accordingly Arts Niche was convicted as charged and fined $1,500 on each charge, ordered to pay arrears of $3,199 to the CPF Board and prosecution costs fixed at $6,500. Arts Niche appealed against conviction and sentence, arguing that the trial judge erred in her finding of fact.

Held, dismissing the appeal:

(1) An appellate court would not interfere with a trial judge's findings of fact unless they were plainly wrong. The trial judge's finding that Ong, Wan and Aw were employees of Arts Niche at the material time was not plainly wrong and should be upheld: at [30] and [31].

(2) During the trial, much of Art Niche's defence was not put to prosecution witnesses during cross-examination, resulting in a breach of the rule in Brown v Dunn (1893) 6 R 67. Although the trial judge had the discretion to recall the Prosecution's witnesses for cross-examination under s 399 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), such discretion was to be exercised sparingly. It was not appropriate for the trial judge to exercise it in the present case had such an application been made, as there were too many instances of failure to put Arts Niche's case to the prosecution witnesses for such omissions to be inadvertent and Arts Niche's defence was self-contradictory and inherently incredible: at [49] to [51].

(3) The sentence imposed by the trial judge was not manifestly excessive as this was Arts Niche's second such offence, and the fines imposed were well within the statutory maximum. The multiplicity of the charges, Arts Niche's reasons for non-payment and its defaulting on payment of CPF contributions twice within the short period of less than a year were aggravating factors to be considered: at [54].

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation44 ALR 607 (folld)

Browne v Dunn (1893) 6 R 67 (refd)

Jasbir Kaur v Mukhtiar Singh [1999] 1 SLR (R) 616; [1999] 2 SLR 349 (folld)

Lim Ah Poh v PP [1992] 1 SLR (R) 192; [1992] 1 SLR 713 (refd)

Liza bte Ismail v PP [1997] 1 SLR (R) 555; [1997] 2 SLR 454 (refd)

Mohammad Ali bin Mohd Noor v PP [1996] 2 SLR (R) 692; [1996] 3 SLR 276 (refd)

Oh Cheng Hai v Ong Yong Yew [1993] 3 SLR (R) 257; [1993] 3 SLR 930 (folld)

PP v Azman bin Abdullah [1998] 2 SLR (R) 351; [1998] 2 SLR 704 (refd)

R v Wilson [1977] Crim LR 553 (refd)

Reid v Kerr (1974) 9 SASR 367 (refd)

Tan Koon Swan v PP [1985-1986] SLR (R) 976; [1986] SLR 126 (refd)

Wee Soon Kim Anthony v PP [1992] 3 SLR (R) 9; [1993] 1 SLR 372 (refd)

Yap Giau Beng Terence v PP [1998] 2 SLR (R) 855; [1998] 3 SLR 656 (refd)

Central Provident Fund Act (Cap 36, 1997 Rev Ed)s 58 (b) (consd);ss 2,61 (1)

Central Provident Fund Regulations1987, The (S 313/1987)reg 2 (1)

Criminal Procedure Code (Cap 68,1985 Rev Ed)ss 262 (1), 399,401 (1)

Kho Siaw Hwie (in person) for the appellant

Shashi Nathan (Khattar Wong & Partners) for the respondent.

Yong Pung How CJ

1 The appellant was charged in the Subordinate Courts with three counts under s 58 (b) of the Central Provident Fund Act (Cap 36) of failing to pay contributions to the Central Provident Fund (“CPF”) for the month of January 1998 in respect of three of its employees within the period prescribed by reg 2 (1) of the CPF Regulations 1987, namely, 14 days from 1 February 1998. The appellant was convicted as charged, and was fined $1,500 on each charge. It was also ordered to pay arrears of $3,199 to the CPF Board and the costs of prosecution, which were fixed at $6,500. I dismissed the appellant's appeal against its conviction and sentence, and now give my reasons.

The background facts

2 The appellant is a company involved in the business of providing computer products. It commenced operations in April 1997, when it took over the business of Arts Niche Cyber Distribution (“Arts Niche”), a sole proprietorship owned by one Kho Siaw Hwie (“Kho”). Kho, who represented the appellant in this appeal, was at all material times in charge of the management of the company and was also responsible for paying the wages of its staff. The other director of the company, Saw Chaik Lee, was merely a “sleeping” director.

3 The appellant first began to experience financial difficulties in July 1997 when a number of its business ventures fell through. By September 1997, its prospects were, according to Kho, very bleak. At the time of the trial, the company was still in existence, but had ceased operations and no longer had any employees working for it.

4 In the court below, it was not in dispute that the appellant had not paid any CPF contributions for the month of January 1998 in respect of Ong Bee Yan (“Ong”), Wan Wai Kay (“Wan”) and Aw Kok Chun (“Aw”), who were alleged to be its employees at the material time. The only issue before the trial judge was whether Ong, Wan and Aw were in fact employees of the appellant in January 1998 within the meaning of the CPF Act for CPF contributions to be payable.

The Prosecution's case

5 The Prosecution's case, in essence, was that Ong, Wan and Aw were all employees of the appellant at the material time. These three witnesses gave evidence to this effect at the trial.

Ong's evidence

6 Ong testified that she joined the appellant as an administrative assistant on 17 June 1997, with a starting salary of $1,680. She was given two salary increments between July and October 1997, first to $1,800 and then to $2,000. Her duties had included recording leave taken by the company's staff and changes in the company's stock. She had also dealt with the issuing of pay cheques for staff salaries. She had prepared these pay cheques on Kho's instructions by filling in the names of the payees and the amounts payable on the cheques before letting Kho sign them; she had never filled in cheques pre-signed by Kho.

7 Ong told the court that she had been paid her salary regularly from June to October 1997. Her pay cheque for November 1997, however, had been dishonoured. During cross-examination, she denied that this cheque had been pre-signed by Kho and that she had filled it in and presented it for payment without his knowledge.

8 Ong stated that in December 1997 and January 1998, she likewise failed to receive her salary from the appellant despite having asked Kho for it on several occasions. Eventually, she decided to leave the company. She handed in her letter of resignation in January 1998, and her last day of work was on 21 February 1998. She had not been dismissed by the appellant in November 1997; neither had she ever received a letter of termination from the company. She also denied Kho's allegations that she was guilty of “moonlighting” and misusing the appellant's confidential information whilst in its employment.

Wan's evidence

9 Wan's evidence was that he started working for Kho at Arts Niche in August 1995. When the appellant was incorporated, he joined it as a systems specialist. Although there was no written contract of employment between him and the company, he had been employed by the latter at the material time.

10 Wan testified that the appellant had not paid him any salary since November 1997 and had stopped paying contributions to his CPF account since September 1997. He had received a pay cheque for November 1997 from Kho, but had been told not to present it for payment as the company had no funds to honour the cheque. For December 1997 and January 1998, he had not received any pay cheques at all. Although Kho had given him cash amounting to a few hundred dollars during those months, these sums were simply “something like pocket money”, and did not constitute payment for work which he had done for the appellant on its projects.

11 Wan also told the court that he had never been sacked by Kho or questioned about any impropriety or mismanagement on his part. Although some of the appellant's employees had been dismissed in the second half of 1997, he was not one of them and had never received a letter of termination from the company. In fact, Kho had asked him to stay on with the company. Furthermore, although some of the appellant's stock had been found to be missing, this had nothing to do with him. He had left the company's employment only on 21 January 1998, approximately one month after he handed in his letter of...