Lee Chiang Theng v PP

• Jurisdiction: Singapore
• Judgment Date: 22 November 2011
• Date: 22 November 2011
• Docket Number: Magistrate's Appeal No 344 of 2010; Criminal Motions Nos 8 and 36 of 2011
• Court: High Court (Singapore)

Lee Chiang Theng

Plaintiff

and

Public Prosecutor and other matters

Defendant

[2011] SGHC 252

VKRajah JA

Magistrate's Appeal No 344 of 2010; Criminal Motions Nos 8 and 36 of 2011

High Court

Criminal Procedure and Sentencing—Sentencing—Principles—Employer persistently failing to discharge its responsibility towards its foreign workers—Whether custodial sentence or fine would be more appropriate—Section 22 (1) (a) Employment of Foreign Manpower Act (Cap 91 A, as amended by Employment of Foreign Workers (Amendment) Act 2007)

Criminal Procedure and Sentencing—Sentencing—Principles—Foreign workers employed by employer under arrangement whereby said workers were exclusively tied to sponsoring shipyards—Whether mitigating weight should be given to fact that employers' failure to pay foreign workers' wages was due to failure of sponsoring shipyard to carry out its promised projects—Section 22 (1) (a) Employment of Foreign Manpower Act (Cap 91 A, as amended by Employment of Foreign Workers (Amendment) Act 2007)

Employment Law—Employers' duties—Foreign workers employed by employer under arrangement whereby said workers were exclusively tied to sponsoring shipyards—Sponsoring shipyard failed to carry out its promised projects resulting in absence of work for foreign workers—Employers unable to send foreign workers to work on projects from other parties—Whether employers' responsibility to pay its foreign workers' wages was delegable to sponsoring shipyard which was contractually responsible for providing jobs—Section 22 (1) (a) Employment of Foreign Manpower Act (Cap 91 A, as amended by Employment of Foreign Workers (Amendment) Act 2007)

Immigration—Employment—Foreign worker—Employer employed foreign workers who did not hold valid work permits to work for employer—Said workers however held valid work permits to work for another company—Whether custodial sentence or fine would be more appropriate—Section 5 (1) Employment of Foreign Manpower Act (Cap 91 A, as amended by Employment of Foreign Workers (Amendment) Act 2007)

The appellant faced a total of 100 charges under the Employment of Foreign Manpower Act (Cap 91 A, as amended by Employment of Foreign Workers (Amendment) Act 2007) (‘the EFMA’) . He pleaded guilty to 33 charges, viz, two charges under s 22 (1) (a) read with s 20 for failing to provide acceptable accommodation for foreign workers (‘the accommodation charges’) , 24 charges under s 22 (1) (a) read with s 20 for failing to provide the salaries of the foreign workers on time (‘the salary charges’) and seven charges under s 5 (1) read with s 20 for employing foreign workers without valid work permits (‘the work permit charges’) . He also consented for the remaining 67 charges to be taken into consideration for the purposes of sentencing, viz, 49 salary charges, 13 work permit charges and five accommodation charges.

In relation to the salary and accommodation charges, the appellant was the sole registered director of Goldrich Venture Pte Ltd (‘Goldrich’) and Gates Offshore Pte Ltd (‘Gates Offshore’) . He was invited by the Chief Executive Officer of a marine engineering and construction company, Halcyon Offshore Pte Ltd (‘Halcyon’) to incorporate a resident contractor (‘Resident Contractor’) for Halcyon. The appellant thus incorporated Goldrich and Gates Offshore and they were each granted the status of Halcyon's Resident Contractor by the Ministry of Manpower (‘the MOM’) .

Goldrich was given a quota of 200 foreign workers by Halcyon, its sponsoring shipyard (‘Sponsoring Shipyard’) , and brought almost 200 foreign workers into Singapore. However, Halcyon's projects did not materialise and the foreign workers had no work. Gates Offshore was given a quota of ‘400 plus’ foreign workers by Halcyon and again the ‘400 plus’ foreign workers Halcyon brought in had no work when Halcyon's projects were delayed. Some of the foreign workers under Goldrich and Gates Offshore were housed in unapproved and overcrowded accommodation without satisfactory sanitary facilities. The severely deficient housing conditions exacerbated a chicken pox outbreak that led to the demise of one of the foreign workers.

In relation to the work permit charges, the appellant was the director of S 1 Engineering Pte Ltd, which had employed seven foreign workers without valid work permits for a period of seven months and 12 days.

The district judge sentenced the appellant to a fine of $4,000 in default four weeks' imprisonment per charge for the accommodation and work permit charges. For the salary charges, the appellant was sentenced to one week's imprisonment per charge with four charges to run consecutively. His total sentence was four weeks' imprisonment and a fine of $36,000 in default 36 weeks' imprisonment. The appellant had paid the fine in full for the accommodation and work permit charges and appealed only in respect of the sentence arising from the salary charges on the basis that it was manifestly excessive and that a fine would be more appropriate.

Held, dismissing the appeal:

(1) Under the EFMA, employers owed heavy responsibilities to their foreign workers. The bulk of these responsibilities were set out in the First Schedule of the Employment of Foreign Manpower (Work Passes) Regulations (Cap 91 A, Rg 2, 2009 Rev Ed) . The legislative framework for the employers' responsibilities was unambiguous and non-delegable: at [11] and [12].

(2) The contracts Halcyon entered into with Goldrich and Gates Offshore clarified that the heavy legal responsibilities of an employer of foreign workers had been assigned exclusively to Goldrich and Gates Offshore. In the circumstances, the fact that the appellant had back-to-back contractual arrangements with Halcyon to provide jobs for the foreign workers was not a legitimate excuse for his failure to pay the workers or to attend to their well being when the jobs failed to materialise: at [26] and [27].

(3) While it appeared that Halcyon had failed to perform its side of the bargain, whatever possible recourse the Resident Contractors might have had towards Halcyon was to be adjudged in a different forum. Halcyon's failure to perform its side of the bargain was entirely irrelevant vis-à-vis any consideration of the appellant's criminal liability under the EFMA apropos the breach of his obligations qua employer: at [27].

(4) Employers who persistently failed to discharge their legal responsibilities towards foreign workers would ordinarily have custodial sentences imposed on them. A single serious transgression in relation to this genre of offences might also attract a custodial sentence. Other possible aggravating considerations were, inter alia, (a) a persistent failure by an employer to discharge his responsibilities, (b) an employer's failure to discharge its responsibility that rendered the employee susceptible to physical harm or otherwise resulted in a situation that compromised the worker's overall welfare or well being and (c) an employer's cumulative commission of various offences under the EFMA or different conditions in the work permit with regard to the same worker: at [33].

(5) There was clearly enormous public interest in holding employers, as the persons with the greatest control over the stay and work of foreign workers, fully accountable for the welfare of those workers. It was a legal responsibility that could not be shirked or excused by a deteriorating economic climate or by defaulting business partners. The legal responsibility was even more significant when the foreign workers were of particular vulnerability, ie, unskilled workers with little bargaining power and ability to fend for themselves. The district judge was therefore correct to take the view that the main sentencing consideration to be applied was that of general deterrence: at [34] and [35].

(6) For the salary charges, the district judge had taken into account all the relevant factors of the case and did not err in principle. In light of the aggravating circumstances of the case, it could not be said that a sentence of one week's imprisonment per charge with four charges to run consecutively was manifestly excessive: at [40] and [41].

[Observation: Foreign workers were not chattel like the slaves of less enlightened times. Like any other employees, they had basic rights that had to be strictly respected. A cavalier failure by an employer to appreciate the serious responsibilities concerning these workers' welfare could have profoundly unpleasant consequences: at [1].

For the work permit charges, in light of the eight months of cheap and unlicensed labour the appellant was able to enjoy, the quantum of $4,000 fine per charge ought to have been calibrated higher. The accommodation charges would have also attracted a custodial sentence in order to be commensurate with the severity of the harm caused and the level of deterrence required. As for the salary charges, given the number of workers implicated, the custodial sentence ought to have been heavier. It should be made plain that the custodial sentences given in these proceedings should not be viewed as the benchmark for similar offending conduct. Had there been an appeal to enhance the sentences, the terms of imprisonment might have been significantly increased: at [36], [39], [41] and [43].]

PP v Enilia Donohue [2004] SGMC 9 (not folld)

PP v Lee Heng (District Arrest Cases Nos 7211-7213/2010 and others) (refd)

PP v The Soup Spoon Pte Ltd [2008] SGDC 278 (distd)

PP v Yip Si Wei Julian (District Arrest Cases Nos 30733/2009 and others) (refd)

Employment Act (Cap 91,1996 Rev Ed) s 65

Employment of Foreign Workers Act (Cap 91 A, 1997 Rev Ed) s 22 (1) (a)

Employment of Foreign Manpower Act (Cap 91 A, as amended by Employment of Foreign Workers (Amendment) Act 2007) s 22 (1) (a) (consd) ;ss 5 (1) ,5 (6) (a) ,20, 22 (1) (i)

Employment of Foreign Manpower (Work Passes) Regulations (Cap 91 A, Rg 2, 2009 Rev Ed)...