Lee Huay Kok v Attorney General

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 01 October 2001
• Neutral Citation: [2001] SGHC 291
• Docket Number: Originating Summons No 601058 of
• Date: 01 October 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Hri Kumar and Ajay Advani (Drew & Napier LLC)
• Citation: [2001] SGHC 291
• Defendant Counsel: Eric Chin (Attorney General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Court's jurisdiction to grant leave where disqualification arises under s 154(1) and not s 154(2),Application to court for leave to act as director or take part in management in applicant's company,Directors,Disqualification to act as director on conviction for corruption,Disqualification,Companies,Application two years and nine months after conviction and disqualification,ss 154(1), 154(2), 154(3) & 154(6) Companies Act (Cap 50, 1994 Ed)

: The applicant was convicted in December 1998 after pleading guilty to two charges of corruption under the Prevention of Corruption Act (Cap 241, 1993 Ed). Six other charges were taken into account. The offences were each punishable with a fine of up to $100,000 and imprisonment for a term of up to five years. However, he was fined a total of $13,000. Consequently, he was disqualified under s 154(3) of the Companies Act (Cap 50, 1994 Ed) from acting as a director of a company and from taking part in the management of a company for a period of five years. Now, about two years and nine months after his conviction and disqualification he applies to the High Court for leave to act as a director, or alternatively, to take part in the management of his personal company HK Hardware and Engineering Pte Ltd. His application is made under s 154(6) of the Companies Act that provides as follows:

An application for leave to act as a director of a company or of a foreign company to which Division 2 of Part XI applies or to take part, whether directly or indirectly, in the management of such a company or foreign company may be made by a person against whom a disqualification order has been made upon that person giving the Minister not less than 14 days` notice of his intention to apply for such leave. [Emphasis is mine.]

Mr Eric Chin appeared on behalf of the Attorney General and Mr Hri Kumar together with Mr Advani appeared on behalf of the applicant. They raised a preliminary point of law concerning the court`s jurisdiction to grant leave in cases where the disqualification under s 154(3) arose under s 154(1) and not s 154(2). It is a point that appears not to have been previously considered before a court in similar applications. For convenience, I shall set out sub-ss (1) and (2) of s 154 as follows:

(1) Where a person is convicted (whether in Singapore or elsewhere) of any offence involving fraud or dishonesty punishable with imprisonment for 3 months or more, he shall be subject to the disqualifications provided in subsection (3).

(2) Where a person is convicted in Singapore of -

(a) any offence in connection with the formation or management of a corporation; or

(b) any offence under section 157 or 339,

the court may make a disqualification order in addition to any other sentence imposed.

Mr Chin contended that the power of the court to grant leave to a disqualified person under s 154(6) is confined to cases in which a disqualification order had been made under s 154(2) and not to all cases of disqualification because the disqualification contemplated under s 154(1) is an automatic disqualification that applies on conviction of the offender and no court order is required whereas a person convicted for offences referred to in s 154(2) will be disqualified for a period of five years or any shorter period as the sentencing court may order. Mr Chin submitted that the court`s power under s 154(6) may be exercised only when the applicant was disqualified pursuant to a disqualification order . Mr Kumar submitted that the court`s power to grant leave under s 154(6) is unbridled. He traced the legislative history of this provision to show that in the course of evolution from its original form to the present the draughtsman inadvertently left the word order in sub-s (6) when it was clear that this word ought to have been removed. Counsel`s point was as follows. Section 154(1) prior to the amendment in 1993 reads as:

Where a person is convicted whether within or without Singapore -

(a) of any offence in connection with the promotion, formation or management of a corporation;

(b) of any offence involving fraud or dishonesty punishable on conviction with imprisonment for 3 months or more; or

(c) of any offence under section 157 or 339,

and that person, within a period of 5 years after his conviction, or if he is sentenced to imprisonment, after his release from prison, without leave of the Court is a director or promoter of or is in any way whether directly or indirectly concerned or takes part in the management of a company he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.

Mr Kumar then referred to the Amendment Bill No 33 of 1992 in which the proposed amendment to s 154(1) was drafted in the following terms:

Where a person is convicted whether within or without Singapore -

(a) of any offence in connection with the promotion, formation or management of a corporation;

(b) of any offence involving fraud or dishonesty punishable on conviction with imprisonment for 3 months or more; or

(c) of any offence under section 157 or 339,

the Court may, in respect of an offence under paragraph (a) or (c) and shall, in respect of an offence under paragraph (b), make a disqualification order disqualifying that person from being a director or in any way, whether directly or indirectly, being concerned in or taking part in the management of a company for such period not exceeding 5 years as is specified in the order, to take effect after his conviction, if he is sentenced to imprisonment, after his release from prison. [Emphasis is mine.]

Subsection (3) of s 154 in the Bill reads as: `An application for leave may be made by a person against whom a disqualification order has been made upon that person giving the Minister not less than 14 days` notice of his intention to apply for such leave.` (Emphasis is mine.) Mr Kumar argued that when the Bill was debated and even when the Select Committee studied it no discussion was recorded of confining the court`s power to grant leave only in cases when there was a disqualification order. Parliament and the Select Committee then appear to be only concerned in respect of the issue whether disqualification ought to follow a director who had been convicted outside Singapore for offences of fraud. When the amendment was eventually passed with some changes into the present form para (b) was given pre-eminence as a subsection, that is, as the new sub-s (1), and paras (a) and (b) nestled together under sub-s (2) where the words disqualification order appear. Thus, Mr Kumar submitted that the bifurcation of sub-s (1) after final changes resulted in what he regards as an inadvertent omission to remove the word order from sub-s (6). It seems to me that if that was indeed a draughtsman`s omission it can be likened to a case of a surgeon leaving a swap in the patient after surgery. Mr Kumar further submitted that it is the person disqualified under sub-s (1) who needs sub-s...