Dong Guitian v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 May 2004
• Neutral Citation: [2004] SGHC 92
• Docket Number: Magistrate's Appeal No 130 of 2003
• Date: 06 May 2004
• Year: 2004
• Published date: 10 May 2004
• Plaintiff Counsel: Nai Thiam Siew Patrick and Loh Kia Meng (AbrahamLow LLC)
• Citation: [2004] SGHC 92
• Defendant Counsel: Amarjit Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Section 420 Penal Code (Cap 224, 1985 Rev Ed),Appeal,s 157(c) Evidence Act (Cap 97, 1997 Rev Ed),Whether application of principle of parity of sentence with other accomplices appropriate,Accused dishonestly inducing Ministry of Manpower officer into approving Prior Approval applications for recruitment of foreign workers,Whether accused's credit impeached by previous inconsistent statement,Finding by trial judge that accused had requisite mens rea to cheat,Offences,Whether sentence manifestly excessive,Deception perpetrated against government department,Cheating,Whether trial judge attached undue weight to testimonies of accomplices implicating accused,Section 157(c) Evidence Act (Cap 97, 1997 Rev Ed),Property,Impeachment,Approach of appellate court,Appeals,Whether principle of deterrence dominant consideration,Sentencing,Criminal Law,Principles,Criminal Procedure and Sentencing

6 May 2004

Yong Pung How CJ:

1 This was an appeal against the decision of District Judge Victor Yeo Khee Eng, who convicted the appellant on two counts of cheating and dishonestly inducing a delivery of property, an offence punishable under s 420 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”). The appellant was sentenced to six months’ imprisonment on each charge and the two sentences were ordered to run concurrently. The present appeal was brought against conviction and sentence. At the end of the hearing before me, I dismissed both appeals. I now give my reasons.

Background facts

2 The appellant is a Chinese national and a Singapore Permanent Resident. At all material times, he was a director of Happy Millennium Pte Ltd (“Happy Millennium”), a construction company. The other two directors of Happy Millennium were the nominees of one Neo Hong Lee (“Neo”) and one Tan Thye Kwang (“Tan”) respectively. Tan was a previous employer of the appellant. Although Tan was neither a director nor shareholder of Happy Millennium, he had a part to play in the control and management of the company.

3 On 6 September 2000, the appellant submitted two applications on behalf of Happy Millennium to the Ministry of Manpower (“MOM”) to obtain Prior Approval (“PA”) for the recruitment of 20 and 120 workers respectively from the People’s Republic of China (“PRC”). Happy Millennium submitted the applications in its alleged capacity as a sub-contractor of Sunway Juarasama Sdn Bhd (“Sunway”) in respect of a project secured by Sunway to construct two secondary schools for the Ministry of Education. As the main contractor of the building project, Sunway had been granted a Man-Year Entitlement (“MYE”) by MOM entitling it and/or its sub-contractor(s) to employ up to a certain number of foreign workers to work on the said project. (Sub-contractors obtain MYE allocation from the main contractors as only the latter may apply for MYE.)

4 In support of the PA applications, the appellant submitted, among others, a sub-contract agreement between Happy Millennium and Sunway dated 24 May 2000 (“the Sub-Contract Agreement”). The applications were processed by Yee Chin Fen (“Yee”), a Construction Permit Officer at the MOM. Yee granted the two applications on 14 and 15 September 2000 respectively. In the court below, Yee testified that he would not have approved the PA applications if he had known that Happy Millennium had no intention of carrying out the Sub-Contract Agreement with Sunway.

The Prosecution’s case

5 It was the Prosecution’s case that the appellant was fully aware, at the time he submitted the two applications to MOM, that Happy Millennium was not planning to fulfil the sub-contract with Sunway to build the secondary schools. The applications for PA were in fact a scam (“the MYE scam”) devised by the appellant and three others, namely, Neo, Tan and one Kiw Chiee Mun (“Kiw”), to make quick gains by exploiting Sunway’s quota for foreign workers. By making false representations to the effect that there had been a legitimate allocation of Sunway’s MYE to Happy Millennium, the appellant played a part in the dishonest procurement of the PA to employ the PRC workers. Those involved in the scam consequently made illegal profits by charging the workers commissions for bringing them into Singapore.

6 Neo and Tan, who had pleaded guilty to charges punishable under s 417 of the PC for their involvement in the MYE scam, testified for the Prosecution. They gave evidence that sometime in March 2000, they learned from Kiw, an employee of Sunway, that Sunway had won a contract from MOE to build two schools at Punggol and Sembawang. Since they wanted to take on the sub-contract projects, Neo, Tan and the appellant decided to use Happy Millennium to make a bid at $13m. While Neo was the party principally involved in the calculation of the pricing of the bid, everyone involved, including the appellant, knew of the offer price and agreed to the submission of the tender.

7 Sometime in April 2000, the parties realised that the bid submitted was too low and that Happy Millennium would sustain financial losses if they continued with the project. Hence, they abandoned their original plan to acquire the sub-contract projects, and came up with a scam involving the purchase of the MYE from Sunway at $1,000 per worker. Based on the understanding that they would charge each worker $2,000 for the successful PA application, the parties agreed that out of the $1,000 profit remaining after paying Sunway, the appellant would receive $150. Neo and Tan would get the remaining $850 after deducting all necessary expenses. Neo and Tan maintained that the appellant was present at this discussion, and that he readily consented to take part in the MYE scam.

8 Neo and Tan then met up with Kiw to discuss the under-quotation and their plans to buy the MYE. They explained to Kiw that even though Happy Millennium was unable to continue with the project, they wished to keep the MYE. A few days after the meeting, Sunway agreed to the MYE scam. Neo and Tan testified that the appellant’s main responsibility in the entire scam was to collect the money from the foreign workers and to oversee their operations and deployment.

9 Both Neo and Tan were unequivocal in their evidence that the appellant knew that Happy Millennium had no intention of executing the contract with Sunway and that the Sub-Contract Agreement entered into between the two companies was merely to facilitate the PA applications. The appellant had signed the Sub-Contract Agreement wholly conscious of its purpose and content.

10 Neo and Kiw further attested to the appellant’s involvement in the ensuing fabrication of letters designed to cover up the MYE scam. When the President and the Managing Director of the Sunway Group arrived in Singapore sometime in February or March 2002, the gang produced several letters which falsely stated that there had been a dispute between Happy Millennium and Sunway, and that the contract between the two companies was eventually terminated for this reason. According to Neo, the contents of the letters were duly explained to the appellant before he signed them on behalf of Happy Millennium.

The Defence

11 The appellant’s defence at the trial below was essentially one of bare denial of his participation in, or knowledge of, the MYE scam. He maintained that he had no role in the management of Happy Millennium. He also claimed that he was never involved in the discussions leading to the tender of the sub-contract projects and the subsequent purchase of the MYE from Sunway. In respect of the PA applications, he also refuted any intention to cheat on his part, claiming that he did not know that the supporting documents accompanying the applications were false.

12 The appellant did not dispute that he had signed the PA application forms and the Sub-Contract Agreement. However, he averred that he had signed them without knowing what they were. Being a Chinese national, he could neither read nor write English. As the appellant looked up to Tan as the boss of Happy Millennium, he had simply complied with Tan’s instructions that he sign the documents. Tan never informed him that the application forms were in any way connected with the Sub-Contract Agreement. Additionally, with respect to the letters fabricated to cover up the MYE scam, the appellant maintained that Neo had likewise asked him to sign the letters without providing any explanations as to their content.

The decision of the court below

13 The trial judge highlighted the following ingredients of the offence under s 420 of the PC, as elaborated in Gunasegeran s/o Pavadaisamy v PP [1997] 3 SLR 969 and affirmed in Chua Kian Kok v PP [1999] 2 SLR 542:

(a) the victim must be deceived;

(b) there must have been an inducement such that the victim delivered any property to any person;

(c) this inducement must lead to the delivery of the property; and

(d) there must be a dishonest or fraudulent intention on the part of the appellant to induce the victim to deliver the property.

In the trial below, the only element in dispute was (d), the mens rea of the appellant: whether the appellant had the requisite fraudulent or dishonest intention to deceive Yee when he submitted the applications to obtain the PA for recruitment of the Chinese foreign workers. To resolve this issue, the trial judge had to determine whether the appellant knew of and agreed to participate in the MYE scam, and whether he was aware that the supporting documents submitted to MOM, as well as the declarations in the application forms, were false. The Prosecution’s case therefore turned primarily on the evidence of Neo, Tan and Kiw.

14 Having considered the evidence carefully, the trial judge found the testimonies of the three material witnesses to be largely consistent and convincing. He also found that they were all credible witnesses. They did not shy away from admitting to their own involvement in the MYE scam, and they did not attempt to exaggerate or embellish their evidence to unduly implicate the appellant. The trial judge therefore accepted the evidence of Neo, Tan and Kiw that the appellant was present at the relevant discussions, and that he willingly agreed to participate in the MYE scam. The trial judge also found that Happy Millennium had no intention of carrying out the sub-contract with Sunway, and that the appellant was conscious of this fact when he signed and subsequently submitted the PA applications to the MOM.

15 In contrast to his observations regarding Neo, Tan and Kiw, the trial judge found the appellant to be an unreliable witness who was all too eager to...