Chiew Kok Chai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 19 July 2019
• Neutral Citation: [2019] SGHC 169
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 9324 of 2018
• Year: 2019
• Published date: 31 July 2019
• Hearing Date: 15 March 2019
• Plaintiff Counsel: Chai Ming Kheong, Hoo Ann Qi, Persis and Soh Hao Han, Benjamin (JC Law Asia LLC)
• Defendant Counsel: Teo Lu Jia (Attorney-General's Chambers),Chen Zhida (Rajah & Tann Singapore LLP) as young amicus curiae.
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Benchmark sentences,Criminal Law,Statutory offences,Employment of Foreign Manpower Act
• Citation: [2019] SGHC 169

Aedit Abdullah J: Introduction

This appeal is against sentences of six weeks’ imprisonment that were imposed for offences under s 22(1)(d) read with s 23(1) and punishable under s 22(1)(ii) of the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”), for abetment by engaging in a conspiracy to make false declarations in connection to three work pass applications.

The Prosecution has argued that this appeal provides the High Court the opportunity to set out a sentencing framework that provides guidance on the correct approach to sentencing s 22(1)(d) offences that will utilise the full sentencing range prescribed under s 22(1)(ii) of the EFMA. Having considered the submissions, I agree that guidance in this regard is due and set out the sentencing framework to be applied for offences under this provision.

Facts

The appellant pleaded guilty to 18 charges under the EFMA and the Employment Act (Cap 91, 2009 Rev Ed). He also consented for 43 charges under both Acts to be taken into consideration for the purposes of sentencing, of which two were also under s 22(1)(d) read with s 23(1) and punishable under s 22(1)(ii) of the EFMA.

The facts are set out in Public Prosecutor v Chiew Kok Chai [2018] SGMC 70 (“GD”) at [4]. At the material time, the appellant and Mr Tan Yock Jeen (“Tan”) jointly managed the operations of Wee Chong Construction (“Wee Chong”) and Wan Fu Builders Pte Ltd (“Wan Fu”). The appellant was a registered director of Wan Fu, and was involved in managing the construction projects and foreign employees of both businesses, deploying employees to different worksites and ensuring the payment of employees’ salaries.

The EFMA charges concerned a conspiracy between the appellant and Tan to obtain foreign manpower for Wan Fu, which was not entitled to a foreign manpower quota due to its previous levy defaults. The pair agreed that Tan would apply for work pass applications for three foreign employees to be ostensibly employed by Wee Chong, with the intention that they be employed by Wan Fu instead.

Tan duly submitted the three work pass applications to the Work Pass Division (“WPD”) of the Ministry of Manpower (“MOM”) on this basis. The three foreign employees were issued work passes, and the WPD confirmed that it would not have approved the applications but for Wee Chong’s false declarations. The three employees worked solely for Wan Fu as construction workers. Two of the foreign employees worked for Wan Fu for about five months; the third worked for Wan Fu for about six months.

The appellant was charged, convicted and sentenced under s 22(1)(d) read with s 23(1) and punishable under s 22(1)(ii) of the EFMA. The relevant provisions are set out for ease of reference. Sections 22(1)(d) and 22(1)(ii) state:

Any person who … in connection with any application for or to renew a work pass or for any other purpose under this Act, makes any statement or furnishes any information to the Controller [of Work Passes] or an authorised officer or employment inspector which he knows, or ought reasonably to know, is false in any material particular or is misleading by reason of the omission of any material particular; … shall be guilty of an offence and shall be liable on conviction … to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both; …

Section 23(1) states:

Any person who abets the commission of an offence under this Act shall be guilty of the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

As offences under s 22(1)(d) read with s 23(1) and those under s 22(1)(d) are punished under the same provision, this judgment will deal with the sentencing approach taken towards s 22(1)(d) offences generally. Decision below

The District Judge held that general and specific deterrence are the primary sentencing principles in relation to offences that undermine the work pass regulatory framework: at [22]. Where employers intentionally make false declarations to MOM to employ foreign workers whom they are otherwise not entitled to employ, so as to meet their business needs, a financial penalty might amount to a mere business cost factored into the business’s balance sheet. A custodial sentence would be more likely to serve the deterrent effect that Parliament had intended: at [26] and [27].

The District Judge’s view was “fortified” by the High Court’s sentencing frameworks for offences under s 57(1)(k) of the Immigration Act (Cap 133, 1997 Rev Ed) (“the IA 1997”) and s 182 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”): at [28]. In Abu Syeed Chowdhury v Public Prosecutor [2002] 1 SLR(R) 182 (“Chowdhury”) at [26], the High Court held that a custodial sentence should be the applicable norm where a false representation is made under s 57(1) of the IA 1997. Similarly, the High Court in Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447 (“Koh Yong Chiah”) at [50] held that custodial terms should be imposed as a starting point where offences under s 182 of the Penal Code, which involve the making of false representations to public servants, result in “appreciable harm”.

The District Judge ultimately refrained from adopting the Prosecution’s proposed sentencing framework: at [35]. Nonetheless, he agreed that its submitted sentences of six weeks’ imprisonment for each EFMA charge were appropriate and in line with the sentences imposed in Chowdhury, Koh Yong Chiah and five recent s 22(1)(d) cases: at [36]. Two of the three custodial sentences were to run consecutively. In so deciding, he also considered the offence- and offender-specific factors that the Prosecution had raised: at [37].

The parties’ cases The appellant’s case

The appellant argued that a fine should have been imposed, in line with the sentencing matrix established by the body of s 22(1)(d) cases. Under this sentencing matrix, fines are generally imposed where a false declaration pertains to the salaries payable to foreign workers; the fact that the offender will employ a foreign worker when he has no intention to do so; or a foreign worker’s educational qualifications. The custodial threshold is crossed in more serious cases involving, inter alia, the declaration of “phantom” workers to boost companies’ foreign worker entitlements and where an element of forgery is involved. The categories of principal factual elements determining the appropriate sentencing starting points were set out:¹

S/N	Principal factual element of the offence	Number of cases	Sentence (starting point)
Pre-2012 amendments	Post-2012 amendments
1	“Phantom” workers	18	2	Custodial sentence
2	Forgery	3	4	Custodial sentence
3	Exploitation of foreign workers	1	6	Custodial sentence
4	False declaration (salary)	2	8	Custodial sentence
5	False declaration (false alias)	1	1	Custodial sentence
6	False declaration (employer’s name)	2	6	Fine
7	False declaration (occupation)	0	3	Fine
8	False declaration (credentials)	0	0	Fine

Sentences are adjusted from the applicable starting points to account for the following non-exhaustive sentencing considerations: (a) the materiality, nature and extent of the deception; (b) the role and involvement of the offender in the deception; (c) the consequences of the deception; and (d) offender-specific aggravating and mitigating factors.² The appellant argued that the present matrix correctly reflects Parliament’s intent: it allows for proportionality in sentencing and for the full sentencing range under s 22(1) to be fully utilised. While cases decided prior to the 2012 EFMA amendments resulted in fines of approximately $4,000, cases decided after 2012 saw the imposition of $8,000 fines. The District Judge erred in concluding that a fine was insufficient, given that he had the latitude to impose fines of up to $20,000.³

Finally, there was no need to deviate from or review the current sentencing practice as there was no evidence that a fine was no longer an effective deterrent. The District Judge also misapplied Chowdhury and Koh Yong Chiah, as s 57(1)(k) of the IA 1997 and s 182 of the Penal Code are not in pari materia with s 22(1)(d) of the EFMA, invoking different culpability considerations and involving different penalties and sentencing frameworks.⁴

The young amicus curiae’s case

The young amicus curiae, Mr Chen Zhida (“the amicus”), was appointed to assist the court on the appropriate sentencing framework for s 22(1)(d) offences, taking into account the relevant sentencing principles and the full sentencing range prescribed under s 22(1)(ii) of the EFMA. He submitted that the legislative intent behind s 22(1)(d) encapsulates deterrence as a sentencing principle. He cited Parliamentary debates concerning s 22(1)(d) and its predecessor provisions, and the three increases of the maximum punishment under the provision.

Reviewing the case law, the amicus identified the following non-exhaustive considerations: (a) materiality of the deception; (b) nature and extent of the deception; (c) role and involvement of the offender in the deception; (d) harm caused by the deception; and (e) benefits gained by the offender as a result of the deception. He referred also to the Chowdhury sentencing considerations, which have been cited by the District Court in cases dealing with s 22(1)(d) offences. Although Chowdhury deals with a different offence, s 57(1)(k) of the IA 1997 similarly involves an offender providing false information to obtain a permit.⁵

Furthermore, the upward revisions in the maximum prescribed punishment under s 22(1)(ii) of the EFMA should have resulted in corresponding increases in sentences for s 22(1)(d) offences: see Mehra Radhika v Public Prosecutor [2015] 1 SLR 96...