Lim Kopi Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 06 January 2010
• Neutral Citation: [2010] SGHC 4
• Published date: 12 January 2010
• Date: 06 January 2010
• Year: 2010
• Hearing Date: 26 August 2009
• Subject Matter: SENTENCING,CRIMINAL LAW
• Plaintiff Counsel: Bala Chandran (Mallal & Namazie)
• Citation: [2010] SGHC 4
• Defendant Counsel: Gillian Koh Tan (Attorney General's Chambers)
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No. 133/2009/01

Chao Hick Tin JA: Introduction

This was an appeal against the sentence imposed by the District Court in Ministry of Manpower (MOM) Summons No. 1804 - 1807/2009 and 1810 - 11/2009. The appellant, an incorporated company, had pleaded guilty to six charges for making false declarations to the Ministry of Manpower (MOM) in connection with its application for work passes for foreign workers under s 22(1)(d) of the Employment of Foreign Manpower Act (Cap 91A, 1997 Rev Ed)(“the Act”). The appellant was sentenced to a fine of $10,000 for each of these offences (collectively referred hereafter as “the offences”), making a total fine of $60,000. Seven other similar charges under s 22(1)(d) of the Act were also taken into consideration for the purposes of sentencing. The court ordered the appellant to pay $20,000 of the fine forthwith, with the balance of $40,000 in instalments of $10,000 per month beginning 1 June 2009 and thereafter on or before the 1st of each subsequent month.

The appellant was untraced and had a clean record. The appellant was run by its sole shareholder and director, one Lim Chek Chee (“Lim”) and Lim had earlier also been charged for the same offences as the appellant under s 22(1)(d) of the Act. Lim was sentenced to two months imprisonment per charge, with three of the six charges running concurrently for a total imprisonment term of six months. The written grounds of the District Judge in relation to the present appeal could be found in Public Prosecutor v Lim Kopi Holdings Pte Ltd [2009] SGDC 209 (“the GD”).

Section 22(1)(d) of the Act provides as follows:

Offences 22. —(1) Any person who —

(d) makes any statement or furnishes any information to the Controller or an employment inspector under this Act which he knows or ought reasonably to know is false in any material particular or is misleading by reason of the omission of any material particular;…

shall be guilty of an offence and shall be liable —

(ii) in the case of an offence under paragraph (d), (e) or (f), on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 12 months or to both;…

After hearing the submissions of the appellant’s counsel and the respondent, I reduced the fine imposed for each of the offences from $10,000 to $3,000, making a total fine of $18,000. I also ordered that the excess amount of fine already paid pursuant to the sentence of the District Court be refunded to the appellant. I now give the reasons for my decision.

The facts of the case

The appellant, Lim Kopi Holdings Pte Ltd, was in the business of operating coffee shops in Ang Mo Kio. Because the appellant and Lim were both inexperienced in running coffee shops, they hired one Patrick Boo (“Patrick”), whose company – Starworld Agency – advised the appellant and Lim in their coffee shop business. For the period between March 2008 to August 2008, the Central Provident Fund (CPF) Board records showed that the appellant was making CPF contributions in respect of some thirty local workers. I should explain here that the MOM determines the number of foreign workers a company is entitled to hire based on the size of the company’s local workforce. Despite what were on the CPF records, more than half of the contributions made were fictitious. These bogus hires were in fact family members and relatives of Lim, who had agreed to let the appellant use their names as part of the scheme to inflate the number of local workers hired by the appellant so that the latter would be permitted to hire more foreign workers. In the two weeks from 24 June 2008 to 1 July 2008, the appellant made several applications for work passes to hire six foreign workers as kitchen assistants in its coffee shop. In so doing, it made the following declarations in its application forms to MOM (see GD at [3]):

(i) It was aware that the company’s CPF accounts would be used by the Controller of Work Pass, MOM, to determine the strength of the defendant company’s local workforce, and consequently its foreign worker entitlement; and

(ii) It certified that its CPF accounts only included contributions made to persons who are actively employed by it.

The reason why an applicant was required to make such declarations was explained by Ms Kwa Chin Bee, prosecutor from the MOM who informed the District Court that “CPF accounts are crucial in the MOM’s process of determining foreign worker entitlements… [and because] it is difficult to examine each and every employment relationships, the Ministry places heavy reliance on the accuracy of the CPF records in its work permit approval process” ¹. It is therefore an offence under s 22(1)(d) of the Act to furnish false or misleading information in relation to such an application. It was undisputed that MOM would not have approved the appellant’s application for work passes for the foreign workers had it known that those bogus local workers in respect of whom CPF contributions were made were in fact never employed by the appellant.

The Decision Below

The District Judge, in his GD, emphasised the need to deter offences committed against public institutions and, by committing the six offences, the appellant had “frustrated the Government’s efforts to effectively regulate and monitor the recruitment of foreign labour in Singapore” (GD at [11]). In his view, the approval process was an important “mechanism put in place by MOM in order to regulate the influx of foreign workers whilst protecting equal opportunities for local workers to secure employment”, and because the appellant had intentionally deceived MOM, a substantial fine of $10,000 per charge was warranted (see GD at [11] and [12]). I should add that the District Judge had merely summarised the mitigating factors tendered by the counsel for the appellant, without discussing them, or indicating whether he accepted them (see GD at [6]).

The Appeal The parties’ respective cases Appellant’s Case

Counsel for the appellant argued that the District Judge had failed to consider the mitigating factors in this case, resulting in the court imposing a deterrent sentence which was manifestly excessive and not commensurate with the moral culpability of the appellant. The salient mitigating factors relied on by the appellant could be summarised in the following manner. First, because the appellant and Lim were in essence the “same entity”, the court should not in such a circumstance impose deterrent sentence twice over.² Second, the appellant also argued that the actions of the appellant were not motivated by profit and a reduction of sentence was warranted as there were no victims in the present case and no financial loss was caused³. Third, the hiring of fictitious local workers was essentially the idea of Patrick and not the appellant or Lim. The appellant had therefore committed the offence out of misguided trust in Patrick.⁴

Respondent’s Case

The respondent’s case was, in broad strokes, identical to the one presented by Ms Kwa Chin Bee before the District Judge below (see [6] above). The respondent urged this court to take a stiff stand towards the appellant as the principle of deterrence was a “dominant consideration” in sentencing when deception of a public body was involved⁵. In reply to the appellant’s case, the respondent made the following arguments. First, even if the appellant and Lim were “the same entity”, s 20 of the Act provides for the equal punishment of companies and persons alike for offences under the Act and the appellant was therefore not being punished twice by the fines imposed on it.⁶ Second, it was said that contrary to the appellant’s argument that it did not profit from the offences, the scheme to make false CPF contributions to fictitious local workers stemmed from “Lim’s concern that the coffee shop be a viable business”.⁷Accordingly, “it was wholly inaccurate to argue that the appellant had not intended to profit from the offences”. Rather, the profit “was the continuing financial viability of the coffee shop business venture”⁸ and the “gain” was the appellant’s hiring of the six foreign workers.⁹ It was also irrelevant that there were no victims or financial loss caused. This was because the very raison d’être of s 22(1)(d) of the Act was to “regulate and monitor the recruitment of foreign labour in Singapore” ¹⁰ and the presence of victims or financial losses were not therefore preconditions to an infringement of s 22(1)(d). Third, the respondent rejected as without merits the appellant’s argument that it had committed the offences under influence by Patrick because “it would have been clear to Lim that such a course of action was illegal or at [the] least, improper”¹¹ (emphasis added).

My decision

This case throws up an interesting issue of how corporate offenders should be sentenced when the person managing the company has also been dealt with for the same, or substantially the same, infringements. Before we go further, I should add that at no time should it be doubted that an offence under s 22(1)(d) of the Act is a serious one, which ought to be dealt with swiftly and sternly by the courts. Deterrence is therefore without dispute an important consideration for such offences; otherwise the very object of such a law would be flagrantly undermined. This much was clear from the second reading of the Employment of Foreign Workers (Amendment) Bill (see Singapore Parliamentary Debates, Official Report (22 May 2007) vol 83 at col 928 per the then Minister for Manpower, Dr Ng Eng Hen (“Dr Ng”)). Notably, Dr Ng emphasised that offences of deception warrant stiffer penalties to “maintain the equilibrium” between the economic advantages of having access to foreign manpower and other social objectives such as enabling locals to compete for jobs with foreign workers (id, at col 928):

The ability of our companies to access foreign manpower is a comparative advantage. But our foreign worker policy cannot be...