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. |
Citation | [2019] SGHC 169 |
This appeal is against sentences of six weeks’ imprisonment that were imposed for offences under s 22(1)(
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)(
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)(
The facts are set out in
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)(
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.
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)(
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
The appellant argued that a fine should have been imposed, in line with the sentencing matrix established by the body of s 22(1)(
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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
The young
Reviewing the case law, the
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)(
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