Dong Guitian v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Victor Yeo Khee Eng
• Judgment Date: 31 December 2003
• Neutral Citation: [2003] SGDC 332
• Citation: [2003] SGDC 332
• Court: District Court (Singapore)
• Plaintiff Counsel: Mohamed Nasser (Deputy Public Prosecutor)
• Defendant Counsel: Ooi Oon Tat assisted by Ms Lee Phuay Hui (KK Yap and Partners)
• Published date: 16 January 2004

Background and Charge

This is an appeal against conviction and sentence. The accused was charged with the following two charges:

“that you, on or about the 14^th day of September 2000, at the Ministry of Manpower, Singapore, did cheat one Yee Chin Fen, a Construction Permit Officer of the Construction Permit Section of the Ministry of Manpower, to wit, by falsely representing that there was a contract to be fulfilled between Sunway Juarasama Sdn Bhd and Happy Millennium Pte Ltd amounting to $13,000,000/- when in fact the contract was never going to be fulfilled, and by such deception, the said Yee Chin Fen was dishonestly inducted to deliver to Happy Millennium Pte Ltd, the Prior Approval (PA) for twenty workers from the People’s Republic of China, which the said Yee Chin Fen would not have done, had she not been so deceived, and you have thereby committed an offence punishable under section 420 of the Penal Code, Chapter 224.” (‘P1A’)

“that you, on or about the 15^th day of September 2000, at the Ministry of Manpower, Singapore, did cheat one Yee Chin Fen, a Construction Permit Officer of the Construction Permit Section of the Ministry of Manpower, to wit, by falsely representing that there was a contract to be fulfilled between Sunway Juarasama Sdn Bhd and Happy Millennium Pte Ltd amounting to $13,000,000/- when in fact the contract was never going to be fulfilled, and by such deception, the said Yee Chin Fen was dishonestly inducted to deliver to Happy Millennium Pte Ltd, the Prior Approval (PA) for one hundred and twenty workers from the People’s Republic of China, which the said Yee Chin Fen would not have done, had she not been so deceived, and you have thereby committed an offence punishable under section 420 of the Penal Code, Chapter 224.” (‘P2A’)

2. At the end of the trial, I found that the prosecution has proven its case beyond a reasonable doubt and I convicted the accused.

3. The punishment prescribed for the offence was imprisonment of up to seven years and shall also be liable to a fine. The accused was sentenced to 6 months’ imprisonment for each charge and the sentences were ordered to run concurrently. I now give the reasons for my decision.

The Prosecution’s Case

Evidence of Yee Chin Fen (PW1)

4. The prosecution led evidence from Yee Chin Fen (‘Yee’), a Construction Permit Officer attached to the Ministry of Manpower (‘MOM’), whose duty was to process Man-Year Entitlement (‘MYE’) and Prior Approval for the recruitment of Foreign Workers (‘PA’) submitted by companies. Yee explained that the main contractor of a construction project who met the eligibility criteria would be eligible for MYE to recruit foreign workers to work on the particular construction project. The application for PA would be submitted together with the relevant supporting documents by the employer (who may be the main contractor or sub-contractor), indicating, amongst others, the number of workers and ‘Man-years’ to be used. Once the PA has been granted by the Work Permit Department, the employer may then proceed to recruit the foreign workers and apply for their Work Permits.

5. Yee testified that the accused, a Director of Happy Millennium Pte Ltd (‘Happy Millennium’) submitted two applications on 6 September 2000 for Prior Approval to recruit Foreign Workers under the Foreign Worker’s Scheme (Construction). The application forms were for 20 and 120 People’s Republic of China (‘PRC’) workers respectively for a two-year Work Permit. The project was for the construction of two Secondary Schools at Punggol Site 6 and Sembawang Site 10 by the main contractor, Sunway Juarasama Sdn Bhn (‘Sunway’) for the Ministry of Education (‘MOE’).

6. The relevant supporting documents were submitted together with the application forms (exhibits P3 and P4). In particular, a Sub-Contract Agreement between Sunway (as main contractor) and Happy Millennium (as sub-contractor) dated 24 May 2000 for the construction of the two Secondary School for $13 million; a Letter of Acceptance by MOE dated 16 May 2000 for the award of contract to Sunway; and MOM’s approval of Sunway’s MYE on 30 June 2000. The accused signed on the declaration in Form 1A and Form P, and one Teo Chun Hiong for Sunway endorsed in Form 1B, supporting the application for the PA submitted by Happy Millennium.

7. Yee processed each application, and after having gone through the supporting documents and verifying the details in the application forms, Yee granted the two applications on 14 and 15 September 2000 respectively. The approval letters (exhibit P5 and P6) were sent to Happy Millennium and copied to Sunway. Yee testified that he would not have approved the PA application if he knew that Happy Millennium had no intention to fulfil the Sub-Contract Agreement with Sunway.

8. In cross-examination, Yee explained that a photocopy of the accused’s NRIC with the original was attached to the application form to verify the identity of the applicant, and that the application would not have been accepted if this was not done. Yee further explained that if the Sub-Contract Agreement were terminated, MOM would cancel the PA if the foreign workers were not yet brought into Singapore. However, if the foreign workers were already in Singapore, then the employer could deploy the foreign workers for other project sites, provided MOM was notified. Yee reiterated that if he knew that the Sub-Contract Agreement was not genuine, he would not have approved the application.

Evidence of Neo Hong Lee (PW2)

9. The prosecution also led evidence from Neo Hong Lee (‘Neo’), who had pleaded guilty to his charges under section 417 of the Penal Code, Chapter 224. He was sentenced to a total of four months’ imprisonment and fined $30,000/- for his involvement in the MYE scam.

10. Neo testified that he was a close friend of one Kiw Chee Mun (‘Kiw’) when Kiw worked for him as a Project Manager at SAL Construction Pte Ltd, where Neo was a Director. Sometime in March 2000, when Kiw was working for Sunway, Kiw approached him to undertake two projects by MOE to construct two schools at Punggol and Sembawang, and another at Bukit Batok, with Sunway as the main contractor. Neo was keen to undertake the sub-contract projects and approached Tan Thye Kwang (‘Tan’), who in turn recommended the accused and one Koh Chye Huat (‘Koh’).

11. Neo and Tan then used two companies, Happy Millennium Pte Ltd and Everwin Construction Pte Ltd (‘Everwin’) to bid for the projects. Happy Millennium was used to bid for the project to build the two schools at the Punggol and Sembawang sites at a sum of $13 million. Everwin, for which Koh was involved in, was used to bid for the project at the Bukit Batok site.

12. The Directors of Happy Millennium consisted of the nominees of Neo and Tan, and the accused, and the paid-up capital of the company was $150,000/-. Neo testified that Tan, the accused, Koh, Quantity Surveyors and him prepared the quotations. During cross-examination, Neo explained that as he knew the costing well, he was heavily involved in the calculation of the pricing, whereas the accused’s involvement was not as heavy. However, as a group, everyone had to agree on the pricing, and in this aspect, everyone was aware of the pricing and agreed to the submission of the tender. Neo also agreed with counsel that the accused’s involvement in the paper work initially was very little.

13. Neo testified that after Happy Millennium bid for the project, sometime in April 2000, Tan, the accused and Neo gathered at the Kembangan office to access whether they could complete the project. They realised that the tender sum was too low and that they had under-quoted and that Happy Millennium would be making a loss if they continued with the project.

14. A scam was then hatched to buy MYE from Sunway to avoid making a loss and to make profit through the recruitment of foreign workers. It was agreed that they could earn $2,000/- from each worker, of which $1,000/- would be paid to Sunway, $150/- would go to the accused or Koh, and the remaining $850/- would go to Tan and Neo after deducting all the necessary expenses. Neo maintained that the accused was present in this discussion and agreed to participate in this MYE scam.

15. Neo further testified that Happy Millennium did not intend to fulfil the contract entered into between Sunway and Happy Millennium. The Sub-Contract Agreement between Sunway and Happy Millennium was to facilitate the application for the MYE and PA.

16. Neo and Tan then approached Kiw regarding their intention to buy the MYE from Sunway. Three of them met at a coffeeshop in Geylang to discuss the scam. Neo testified that the accused was not present in this meeting. However, Kiw could not make a decision and he needed to refer the matter to his immediate supervisor, one Teo Chin Hiong. Neo testified that a few days after the meeting at the coffeeshop, Kiw got back to him and agreed to the proposal, and Neo informed Tan accordingly.

17. Neo also explained that the accused’s responsibility was to collect the money from the foreign workers brought in. The accused was also responsible for the operations and deployment of the workers. When the money was received, the accused would hand the money to Tan, who would then distribute the money according to their respective shares.

18. The prosecution further adduced evidence from Neo that sometime in February or March 2002, Kiw approached him to inform him that the President and the Managing Director of the Sunway Group were coming to Singapore to check on the projects. As such, they needed to fabricate letters to cover up the MYE scam. Neo testified that Kiw, the accused, Koh and himself discussed about how to fabricate the letters. Tan was not present in the discussion. Subsequently, the letters were passed to Neo who then passed to the accused to sign. Neo maintained that he explained the contents to the accused and the accused signed the fabricated letters...