Lau Cheng Kai and others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 08 October 2018
• Neutral Citation: [2018] SGHC 218
• Plaintiff Counsel: Luke Lee Yoon Tet (Luke Lee & Co)
• Date: 08 October 2018
• Docket Number: Magistrate’s Appeal No 9006—9009 of 2018/01, Magistrate’s Appeal No 9006—9009 of 2018/02
• Hearing Date: 03 August 2018
• Subject Matter: Statutory interpretation,Prevention of corruption act,Criminal conspiracy,Penal statutes,Criminal law
• Published date: 11 October 2018
• Defendant Counsel: Jiang Ke-Yue and Foo Shi Hao (Attorney-General's Chambers),Chia Kok Seng (KSCGP Juris LLP),Shashi Nathan, Jeremy Pereira and Cathy Pereira (KhattarWong LLP),Wee Pan Lee (Wee, Tay and Lim LLP)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 218
• Year: 2018

Chan Seng Onn J: Introduction

These appeals centre on the hitherto unconsidered issue of the proper interpretation of s 31 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (the “PCA”). Section 31 states:

Conspiracy

31. Whoever is a party to a criminal conspiracy, within the meaning of the Penal Code [Cap. 224], to commit an offence under this Act shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

[emphasis added]

Specifically, the question is whether, given that s 31 of the PCA has the effect of deeming the PCA offence that is the subject of the criminal conspiracy to have been committed, a sentencing judge nevertheless has the discretion to give a discount in sentence on the basis that the PCA offence was not factually committed. Or would the sentencing judge be bound to impose a sentence as if the conspirators had in fact committed the PCA offence which they conspired to commit?

The appellants, Lau Cheng Kai (“Lau”), Loh Hong Hoo (“Loh”), Samsudin Bin Rais (“Samsudin”) and Chua Yee Seng (“Chua”) (collectively, the “Appellants”) each claimed trial to one charge under s 31 of the PCA for being involved in a criminal conspiracy to bribe chief engineers and surveyors of marine vessels, so as to conduct illegal “buy-back” transactions of bunker fuel, where the chief engineers and surveyors would falsely certify that the correct quantity of bunker fuel had been delivered, even though the bunkering company would in reality supply less than what was paid for. The case was heard by the District Judge below (the “Judge”) and at the conclusion of the trial, the Judge convicted each of them of the charge. I note that such corrupt buy-back transactions are not uncommon in the bunkering industry: see, for example, Lim Teck Chye v Public Prosecutor [2004] 2 SLR(R) 525 (“Lim Teck Chye”) and PP v Lam Tat Fei [2014] SGDC 264 (“Lam Tat Fei”). These practices, if left unchecked, severely undermine Singapore’s reputation as a hub for maritime services.

The Appellants were sentenced variously to imprisonment terms of between two weeks and three months by the Judge. The Appellants then filed the present appeals against both conviction and sentence, whilst the prosecution filed cross-appeals against sentence.

Having heard the submissions of parties, I did not find that the Judge had convicted the Appellants against the weight of the evidence. Accordingly, I dismissed the appeals against conviction at the hearing before me on 3 August 2018. Therefore, the sole matter remaining for my consideration involves the appeals and cross-appeals against the sentences imposed by the Judge, which form the subject matter of this reserved judgment.

Facts

I fully agree with the Judge’s findings of fact which can be found in his grounds of decision in PP v Loh Hong Hoo and 3 others [2018] SGDC 92. Therefore, I shall only reproduce the salient facts which are necessary for an appreciation of the issues on sentence in these appeals.

Background to the conspiracy

The second appellant, Loh, was at all material times the general manager of Global Marine Transportation Pte Ltd (“GMT”), a company in the business of providing, inter alia, bunkering services to marine vessels. In August 2012, Loh received US$30,000 in cash from one Ronnie Lau, his former boss and the then managing director of GMT.¹ Ronnie Lau had instructed Loh that this money was to be applied towards GMT’s purposes.

In July 2013, Chua, who was at all material times the operations manager of GMT, approached Loh with a proposal to cover GMT’s loading losses by carrying out buy-back transactions. Loading losses result from the loss of bunker fuel that may occur when barges load bunker fuel at the terminals and there is a variance between the terminal and barge readings. Such variance can arise due to factors such as the temperature of the fuel. There is an industry standard for tolerance of such variance, and any loading loss is usually absorbed by the bunker company.²

Loh agreed with this proposal and passed the US$30,000 to Chua to be used for carrying out these buy-back transactions.³ In his statement, Chua described the manner in which these buy-back transactions would be carried out: “[b]uy-back means that the chief engineer of the vessel will agreed [sic] to sell us back the extra bunker and we will pay him some money for agreeing to do so”. Chua went on to state, as an illustration, that GMT would contractually agree to supply 1000 metric tonnes of bunker to a vessel. However, it would, in reality, only supply 950 metric tonnes of bunker, and pay a bribe to the chief engineer of the vessel to certify that 1000 metric tonnes of bunker were supplied. In such transactions, the bunker clerk and the surveyor would also be involved as they would be the ones taking the opening and closing readings of the fuel gauge. Therefore, part of the bribe meant for the chief engineer would also have to go to the bunker clerk and surveyor for their involvement in faking the opening and closing readings.⁴

Subsequently, Chua passed the US$30,000 on to Lau and instructed him to hold on to the money and stand-by in preparation for any bribes that they would have to pay to carry out the buy-back transactions. Separately, Chua also briefed Samsudin about the details of the plan. Samsudin, being the cargo officer who would actually be on board the vessels, would inform Lau if there was a potential buy-back transaction. Lau would then call Chua to seek approval for the amount of bribe to be paid. After Chua approved the amount, Lau would then deliver the bribe monies to Samsudin, who would then pass on the bribe to the relevant people on board the vessels.⁵

The attempt to carry out the conspiracy

On 29 October 2013, a bunkering barge operated by GMT, the Swan, was supplying bunker to a vessel, the Demeter Leader. Samsudin was the cargo officer stationed on board the Swan.⁶ At 3.50pm, Lau received a call from Samsudin, who requested for US$6,000 to be passed to him for the purpose of paying bribes to carry out a buy-back transaction.⁷ Lau then sought approval from Chua, which Chua granted. Lau thereafter went to Pasir Panjang pier and handed Samsudin the US$6,000.⁸

Later that night, at about 9.15pm, the Maritime and Port Authority of Singapore and the Corrupt Practices Investigation Bureau (“CPIB”) conducted a joint raid on the Swan and the Demeter Leader. A simultaneous raid was conducted by another CPIB team at Lau’s residence. Lau was arrested and escorted back to the CPIB’s premises.⁹

Chua’s attempt to hide the remaining US$24,000

After Lau was arrested, Lau’s son delivered an envelope to Chua which contained the remaining US$24,000.¹⁰ Chua then passed the US$24,000 to his wife, and instructed her to pass the money to his mother to take to his brother’s home. Chua admitted that his intention was to hide the US$24,000.¹¹ The US$24,000 was subsequently recovered by CPIB officers from Chua’s brother’s home.

Importantly, it should be noted that there was no evidence adduced at the trial below of any actual buy-back transaction that had taken place.¹² However, the Judge held that for a charge of criminal conspiracy, the mere criminal agreement is an offence even if no step is taken to carry out that agreement: NMMY Momin v The State of Mahrashtra (1971) Cri LJ 793 at 796, cited by the Court of Appeal in Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619 at [75].¹³

Decision below

In coming to his decision on sentence, the Judge first considered the interpretation of s 31 of the PCA. The Judge held that on a plain reading of the provision, conspirators are only liable to the same maximum punishment prescribed for the offence.¹⁴ This is in contrast to the interpretation advanced by the prosecution, which was that the conspirators should be punished as if they had actually paid out the bribes and committed the offence. The Judge then went on to state that an “incomplete, inchoate offence such as a simple conspiracy would generally involve a lower degree of culpability and harm than a completed offence” and that the sentence therefore “ought to be commensurately lower”.¹⁵

Notwithstanding his interpretation of s 31 of the PCA, the Judge held that the custodial threshold had nevertheless been crossed in the present case. This is on the basis that for corruption in strategic industries such as bunkering, there is an overwhelming need for deterrence which will not be achieved by anything short of a custodial sentence.

In sentencing Chua and Loh each to three months’ imprisonment, the Judge relied on PP v Kolodiy Yaroslav (DAC 932582/2016). In that case, the chief engineer of a vessel who pleaded guilty to receiving a bribe of US$8,800 was sentenced to three months’ imprisonment. The Judge held that while Chua and Loh did not receive or give any bribes, they had agreed to use the US$30,000 for corrupt buy-back transactions, and therefore a similar sentence would be appropriate.¹⁶

In sentencing Lau to two weeks’ imprisonment, the Judge relied on Lam Tat Fei, which will be discussed in further detail at [65] below. The accused in that case was a deliveryman who was convicted after trial for delivering bribes of US$5,500 and US$8,400, and for receiving a bribe of US$200. He was sentenced to six weeks’ imprisonment in total. The Judge held that although the bribe amounts were similar in scale to the US$6,000 that Lau delivered to Samsudin, there was no evidence that harm in the form of a bribe had occurred in the present case and Lau received no bribe monies. Accordingly, Lau’s sentence ought to be significantly lower.¹⁷ The Judge then went on to sentence Samsudin to one months’ imprisonment, on the basis that his culpability was higher than that of Lau’s, but significantly lower than that of Chua and Loh.¹⁸

Significantly, the Judge...