Leong Wai Kay v Carrefour Singapore Pte Ltd

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 30 April 2007
• Neutral Citation: [2007] SGCA 26
• Docket Number: Civil Appeal No 66 of 2006
• Date: 30 April 2007
• Published date: 04 May 2007
• Year: 2007
• Plaintiff Counsel: M Mahendran and Harvindarjit Singh Bath (Surian & Partners)
• Citation: [2007] SGCA 26
• Defendant Counsel: Sadique Marican and Anand Kumar (Sadique Marican & Z M Amin)
• Court: Court of Appeal (Singapore)
• Subject Matter: Sections 6(a), 14(1) Prevention of Corruption Act (Cap 241, 1993 Rev Ed),Employee of company obtaining bribes,Whether recovery barred by penalties ordered under criminal proceedings,Employee convicted of corruption under s 6(a) Prevention of Corruption Act and ordered to pay penalty equal to amount of bribes,Restitution,Prevention of Corruption Act,Company commencing civil action under s 14(1) Prevention of Corruption Act to recover bribes

30 April 2007

Chan Sek Keong CJ (delivering the grounds of decision of the court):

1 This was an appeal by an employee who had taken bribes from various suppliers of services to his employer, the respondent in this appeal. The only question before us was one of law, viz, whether, pursuant to s 14(1) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the Act”), the appellant, who had paid the penalty to the State under s 13(1) of the Act, remained liable to pay the same amount to the respondent as a civil debt. At the conclusion of the appeal, we dismissed the appeal. We now give our reasons for doing so.

Facts

2 The facts were undisputed and can be briefly stated. The appellant was employed as the facilities manager of the respondent between April 1998 and July 2003. In the course of his employment, he received bribes from several companies which provided services to the respondent in return for awarding service contracts to them.

3 The appellant was charged for offences punishable under s 6(a) of the Act. He pleaded guilty to ten charges of receiving bribes. He was convicted and 82 other charges were taken into consideration for the purposes of sentencing. The appellant was sentenced to a term of imprisonment and ordered, under s 13(1) of the Act, to pay a penalty of $292,800, being the amount of bribes received by him. The appellant duly paid the penalty.

4 The respondent then commenced proceedings under s 14(1) of the Act to recover as a civil debt the sum of $292,800, being the amount of gratification received by the appellant. The appellant admitted to having received $292,800 as gratification corruptly but argued that, having already disgorged all the moneys he had received, he had a full defence to the respondent’s civil claim for the same amount.

Proceedings in the lower courts

5 The assistant registrar dismissed the respondent’s application for summary judgment under O 14 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). On appeal, the judge allowed the appeal and entered final judgment for the respondent in the sum of $292,800 with costs. Her decision is reported at Carrefour Singapore Pte Ltd v Leong Wai Kay [2006] 4 SLR 412.

6 In finding for the respondent, the judge rejected the appellant’s argument (described in [4] above) on the grounds that it was: (a) contrary to the clear language of s 14(1) of the Act; and (b) misconceived as criminal proceedings were separate and distinct from civil proceedings which were based on a cause of action given by s 14(1). The judge held that the respondent’s right to recover the bribes from the appellant was unaffected by the conviction.

Sections 13 and 14 of the Act

7 We begin the discussion of our reasons by setting out the relevant provisions of the Act, which are ss 13 and 14:

When penalty to be imposed in addition to other punishment.

13.—(1) Where a court convicts any person of an offence committed by the acceptance of any gratification in contravention of any provision of this Act, then, if that gratification is a sum of money or if the value of that gratification can be assessed, the court shall, in addition to imposing on that person any other punishment, order him to pay as a penalty, within such time as may be specified in the order, a sum which is equal to the amount of that gratification or is, in the opinion of the court, the value of that gratification, and any such penalty shall be recoverable as a fine.

(2) Where a person charged with two or more offences for the acceptance of gratification in contravention of this Act is convicted of one or some of those offences, and the other outstanding offences are taken into consideration by the court under section 178 of the Criminal Procedure Code for the purpose of passing sentence, the court may increase the penalty mentioned in subsection (1) by an amount not exceeding the total amount or value of the gratification specified in the charges for the offences so taken into consideration.

Principal may recover amount of secret gift.

14.—(1) Where any gratification has, in contravention of this Act, been given by any person to an agent, the principal may recover as a civil debt the amount or the money value thereof either from the agent or from the person who gave the gratification to the agent, and no conviction or acquittal of the defendant in respect of an offence under this Act shall operate as a bar to proceedings for the recovery of that amount or money value.

(2) Nothing in this section shall be deemed to prejudice or affect any right which any principal may have under any written law or rule of law to recover from his agent any money or property.

8 A principal’s right to recover a bribe or secret commission received by his agent originated in equity as early as 1829 in Fawcett v Whitehouse (1829) 1 Russ & M 132; 39 ER 51 where the court held that an agent who received any secret advantage from the other party to a transaction in which the agent was acting for his principal was bound to account for it to his principal. This was an equitable remedy, obtainable only in the Chancery Courts.

9 It was only until the later part of the 19th century, in the case of Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch D 339, that the common law courts came to recognise the principal’s right to recover the bribe as an action for money had and received by the agent to the use of the principal. The principal’s right was so well entrenched that it was statutorily recognised by s 14 of the Act, which was first enacted in 1937 as s 6 of the Prevention of Corruption Ordinance (No 41 of 1937) (“the 1937 Ordinance”). In T Mahesan v Malaysian Government Officers’ Co-operative Housing Society [1978] 1 MLJ 149 (“Mahesan...