Carrefour Singapore Pte Ltd v Leong Wai Kay

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 06 September 2006
• Neutral Citation: [2006] SGHC 160
• Date: 06 September 2006
• Subject Matter: Employee convicted of corruption, imprisoned and ordered to pay penalty in the sum of amount of bribes received,Section 14(1) Prevention of Corruption Act (Cap 241, 1993 Rev Ed),Civil action by company under s 14(1) Prevention of Corruption Act to recover gratification accepted by former manager whilst employed by company,Civil debt,Whether civil action to recover gratification barred by penalties and disgorgement ordered under criminal proceedings,Debt and Recovery
• Docket Number: Suit No 422 of 2005 (Registrar's
• Published date: 14 November 2006
• Defendant Counsel: M Mahendran (Surian & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Sadique Marican and Anand Kumar (Sadique Marican & Z M Amin)

6 September 2006

Belinda Ang Saw Ean J:

1 The plaintiff, Carrefour Singapore Pte Ltd, brought this action against the defendant, Leong Wai Kay, who prior to his conviction was the facilities manager of the plaintiff. This appeal concerns the recovery of bribes as a civil debt under s 14(1) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the Act”). The question which arose at the appeal was whether pursuant to s 14(1) of the Act, the defendant, who had already paid to the State the penalty sum imposed on him following his conviction, remained liable to pay the plaintiff as a civil debt a like amount of the bribes received by him. I allowed the plaintiff’s appeal and entered final judgment for the plaintiff in the sum of $292,800. The defendant has appealed against my decision.

2 The defendant joined the plaintiff company on 17 April 1997. His employment was terminated on 28 October 2003. Between April 1998 and July 2003, the defendant as facilities manager received bribes from several companies who provided services to the plaintiff. The bribes were given in return for awarding contracts to those service providers. The defendant was duly charged for offences punishable under s 6(a) of the Act. He pleaded guilty on 13 September 2004 to ten charges of receiving bribes. He was convicted and 82 other charges were taken into consideration for the purpose of sentencing. The defendant was sentenced to a total of ten months’ imprisonment and ordered to pay a penalty of $292,800, in default 16 months’ imprisonment. The defendant paid the penalty of $292,800 being the amount of bribes received by him.

3 The defendant in his defence admitted to receiving $292,800 as gratification corruptly. Essentially, his defence to the plaintiff’s application for summary judgment was that having already disgorged all the moneys he had received he could not remain liable to the plaintiff as it would be tantamount to making him pay twice for the same gratification. It was equally unjust since he was no longer enriched. Counsel for the defendant, Mr M Mahendran, referred me to PP v Teng Cheow Hing [2005] SGDC 38, a decision of the District Court on s 13 of the Act. Counsel argued that the intention of s 13 was not to penalise the offender twice over but to disgorge the gratification. By analogy, the same reasoning should apply in the present case.

4 In response, counsel for the plaintiff, Mr Sadique Marican, maintained that it was irrelevant and immaterial to the plaintiff’s claim that the bribes were disgorged as a result of the penalty imposed on the defendant in the criminal proceedings. There would be no double payment as alleged. Mr Marican relied on the decision of the Privy Council in T Mahesan v Malaysian Government Officers’ Co-operative Housing Society [1978] 1 MLJ 149 (“Mahesan v Malaysian Housing Society”) for the proposition that the imposition of a penalty in the criminal proceedings of an amount equivalent to the bribes received by the defendant is not a defence barring the plaintiff’s recovery of the civil debt against the defendant under s 14(1) of the Act. Section 14 reads as follows:

(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

5 In that case, the Privy Council considered s 30 of the Malaysian Prevention of Corruption Act, 1961 (No 42 of 1961) (“the Malaysian Act”), which deals with civil remedies for bribery in Malaysia. Section 30 of the Malaysian Act is in pari materia to our s 14. The appellant, Mahesan, was a director and employee of the respondent whose object as housing society was to provide housing for government employees. Mahesan could have purchased land on behalf of the respondent at the time he inspected it and at the price of RM456,000 which one Manickam was given for it, instead of RM944,000 at which the latter sold it on to the respondent. It transpired that from the gross profit of RM488,000, Manickam passed one quarter of it (ie RM122,000) to Mahesan as a bribe. Mahesan was convicted under the Malaysian Act and sentenced...