Leng Kah Poh v PP

• Jurisdiction: Singapore
• Judgment Date: 18 September 2013
• Date: 18 September 2013
• Docket Number: Magistrate's Appeal No 50 of 2013/01-02
• Court: High Court (Singapore)

Leng Kah Poh

Plaintiff

and

Public Prosecutor

Defendant

[2013] SGHC 180

Choo Han Teck J

Magistrate's Appeal No 50 of 2013/01-02

High Court

Criminal Law—Corruption—Prevention of Corruption Act (Cap 241, 1993 Rev Ed) —Appellant and two others planned to set up company to sell food to appellant's employer—Two companies incorporated for that purpose—Appellant assisted two companies in securing contracts with his employer—Appellant not involved in management of those two companies nor listed as director—Appellant received one-third share of profits

The appellant was the food and beverage manager at IKANO Pte Ltd (‘IKEA Singapore’), a Singapore company that operates the IKEA furniture stores in Singapore. In October 2002, the appellant and Gary Lim Kim Seng (‘Gary’) discussed setting up a food supply company to sell dried food products to IKEA Singapore. They convinced Andrew Tee Fook Boon (‘Andrew’) to convert his company, AT 35 services (‘AT 35’) from a waste management into a food supply company. Gary and Andrew each contributed $30,000 in cash to start AT 35's food supply business but the appellant made no direct cash contribution. It was agreed that the appellant would instead plough back $20,000 of his share of the initial profits into AT 35 for its continued business. The appellant's role in this arrangement was to give AT 35 insider tips on how to make its products palatable to IKEA Singapore and to exercise his influence to approve AT 35 as the exclusive food suppliers of dried goods and chicken wings to IKEA Singapore. The appellant was not a director or manager of AT 35. AT 35's business with IKEA was so successful that a second company, Food Royale Trading (‘FRT’), was set up with the same modus operandi.The appellant, Andrew and Gary shared all profits three ways. The trial judge found that the appellant used his influence to secure the contracts to AT 35 and FRT in exchange for a share of the profits with guilty knowledge, and accordingly convicted the appellant of corruption under the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (‘the PCA’). The appellant appealed against both conviction and sentence.

Held, allowing the appeal:

(1) The offence of corruption under the PCA assumed that there were at least three parties: the principal whose loss was at issue, the agent whose corrupt intention was at issue, and the person or entity inducing the agent to act dishonestly or unfaithfully. This was apparent in the structure of the PCA. Sections 5 and 6 complemented each other by applying to the different wrongdoers in a corrupt transaction, the latter to the agent and the former to the person or entity inducing or rewarding that agent. It was not sufficient for convicting someone under s 6 (a) of the PCA to find that he had acted with a dishonest intent. An agent who had acted with dishonest intent and interfered his principal's affairs but had not been induced to do so by a third party was not guilty of corruption as defined under the PCA: at [8] .

(2) The question was not whether AT 35 and FRT were separate entities from the appellant nor about who owned and managed the affairs of AT 35 and FRT, but rather what the intention and scheme behind that act were. Beneath the form, the true nature of the arrangement showed that the appellant was in fact the master mind, or co-conspirator with Gary. The judge's crucial finding of fact, viz, that there was a corrupt element from the appellant having been induced to participate in the impugned arrangement rather than having come up with that arrangement by himself, was thus clearly wrong: at [10] , [13] and [14] .

(3) The appellant made use of his position within the principal to earn secret profits, which he shared with his partners. Broadening the scope of the offence of corruption to include cases such as these would mean that every time an employee or director gained secret profits by virtue of a conflict of interest he would have committed an offence under the PCA. The appellant might have committed some other offences or just a civil fraud, but the PCA was not intended to cover these sorts of circumstances: at [14] .

[Observation: Counsel for the appellant submitted further submissions without leave after the hearing. Lawyers had to be fully prepared for trial from start to end and the trial ended with the closing submission or, as in this case, the submission on appeal. Submissions had to be made one whole. There was no such thing as a submission by instalments: at [16] .]

Chan Wing Seng v PP [1997] 1 SLR (R) 721; [1997] 2 SLR 426 (refd)

Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 211; [1998] 2 SLR 592 (refd)

Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 (refd)

Yuen Chun Yii v PP [1997] 2 SLR (R) 209; [1997] 3 SLR 57 (refd)

Penal Code (Cap 224, 2008 Rev Ed) s 34

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) s 6 (a) (consd) ;s 5

S K Kumar (S K Kumar Law Practice LLP) for the appellant

Sandy Baggett, Sherlyn Neo and Ang Feng Qian (Attorney-General's Chambers) for the Public Prosecutor.

Judgment reserved.

Choo Han Teck J

1 The appellant was the food and beverage (‘F&B’) manager at...