Lim Teck Chye v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 April 2004
• Neutral Citation: [2004] SGHC 72
• Citation: [2004] SGHC 72
• Defendant Counsel: Eddy Tham and James Lee (Deputy Public Prosecutors)
• Published date: 20 April 2004
• Plaintiff Counsel: Davinder Singh SC and Tey Tsun Hang (Drew and Napier LLC)
• Date: 14 April 2004
• Docket Number: Magistrate's Appeal No 198 of 2003
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Whether any reason to interfere with trial judge's findings of fact,Appeal,Discrepancies in evidence,Criminal Law,Elements of offence,Power of appellate court to reverse findings of fact,Whether principle of equal culpability between giver and receiver in corruption offence breached,Abetment by conspiracy,Section 107 Penal Code (Cap 224, 1985 Rev Ed),Principles,Abetment,Whether corruption in commercial context warranted custodial sentence,Applicable principles,Criminal Procedure and Sentencing

14 April 2004

Yong Pung How CJ:

1 The appellant was charged and convicted in the Subordinate Courts by District Judge Kow Keng Siong on six counts under s 6(b) read with s 29 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”). He was found guilty after trial of having abetted, by conspiracy, one Henry Low Chee How (“Henry Low”) and other employees of Coastal Bunkering Services Pte Ltd (“CBS”) to corruptly pay gratification to marine surveyors to falsely certify that CBS had supplied the correct quantity and quality of marine oil to vessels of CBS’s customers. The appellant was sentenced to a total of six months’ imprisonment and ordered to pay $240,000 in fines. Each of the six offences carried a $40,000 fine and two months’ imprisonment; three of the imprisonment sentences were ordered to run concurrently. He appealed against his conviction and sentence. I dismissed the appeals and now give my reasons.

Background

2 The appellant was a director of CBS, a company controlled by his family, and was in charge of its operations and financial matters. CBS’s business included the trading of bunker oil, marine diesel oil, and marine gas oil. He was assisted by a cargo manager, one William Ng, and a team of cargo supervisors, which included Henry Low. As cargo supervisor, Henry Low directly oversaw the bunkering (or supply) of oil to customers’ vessels.

3 I shall briefly describe how a typical CBS bunkering transaction was conducted. Upon receiving a bunkering order, CBS would dispatch one of its barges to the customer’s vessel. A CBS bunker clerk (who reported directly to either William Ng or Henry Low) stationed on the barge would have a master requisition form (“MRF”) stating the quantity and quality of oil to be supplied. The bunker clerk would be responsible for discharging the cargo of oil to the receiving vessel and for preparing the relevant documentation. This included a bunker delivery receipt (“BDR”) and a stock movement report (“SMR”). The BDR was meant to reflect the amount and quality of oil CBS had supplied to the customer’s vessel and was also used as an invoice for payment. The SMR recorded all the bunkering transactions carried out by the particular barge. Occasionally, CBS customers would engage a marine surveyor to verify that the nominated quantity and quality of oil had been supplied to their vessel. The marine surveyor would witness the bunkering process and thereafter submit a survey report.

4 The appellant’s conviction below involved the payment of corrupt gratification to four marine surveyors in relation to six bunkering transactions for the following motor vessels (one charge for each was brought against the appellant):

(a) the Hanjin Elizabeth (bunkered on 22 April 2002);

(b) the El Greco (bunkered on 24 April 2001);

(c) the Ocean Ranger (bunkered between 14 May 2001 and 15 May 2001);

(d) the Madre Deus (bunkered between 23 May 2001 and 24 May 2001);

(e) the Hanjin Kwangyang (bunkered on 9 June 2001); and

(f) the Geopotes X (bunkered on 10 April 2001).

According to the BDRs and the supposedly independent marine surveyors’ reports for each of these bunkering transactions, CBS had supplied the full amount of cargo nominated in the respective MRFs. CBS had accordingly invoiced and received payment from its customers for the full amount of the nominated cargo of oil.

The law

5 Section 6(b) of the PCA provides that it is an offence if any person:

… corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business.

This is punishable by a fine not exceeding $100,000 and/or an imprisonment term not exceeding five years. Anyone who abets such an offence shall be deemed to have committed the offence pursuant to s 29 of the PCA, and would be liable to the same punishment.

6 Abetment involves the complicity of an abettor towards the commission of an offence. The abettor, self-evidently, need not participate directly in the commission of the offence, although he may do so. The abetment is itself the offence. Abetment by conspiracy is one of three categories of abetment under s 107 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”). Section 107(b) of the PC provides that a person abets the doing of a thing where that person:

… engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. [emphasis added]

In the case of PP v Yeo Choon Poh [1994] 2 SLR 867, the Court of Appeal provided the definition of a “conspiracy” at 873, [19] and [20]:

The essence of a conspiracy is agreement and in most cases the actual agreement will take place in private in such circumstances that direct evidence of it will rarely be available. …

One method of proving a conspiracy would be to show that the words and actions of the parties indicate their concert in pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy but rather constitute evidence of the conspiracy.

I expanded on this in Ang Ser Kuang v PP [1998] 3 SLR 909 at [30] and [31], where I stated that:

There need not be communication between each conspirator and every other, provided that there be a common design, common to each of them.

What is essential is that there must be knowledge of a common design, and it is not necessary that all the co-conspirators should be equally informed as to the details.

[emphasis added]

7 Abetment by conspiracy has three essential elements. First, the person abetting must engage, with one or more persons, in a conspiracy (as defined above). Second, the conspiracy must be for the doing of the thing abetted; and third, an act or illegal omission must take place in pursuance of the conspiracy in order to the doing of that thing. This was stated by the Court of Appeal in Chai Chien Wei Kelvin v PP [1999] 1 SLR 25.

8 In order to succeed on the six charges brought against the appellant, therefore, the Prosecution had to show the district judge two things:

(a) That the marine surveyors in question were corruptly given gratification in order to facilitate illicit “buy-back” transactions (see [9] infra); and

(b) That the corrupt gratification so given was pursuant to a plan devised by, or in concert with, the appellant.

The district judge was satisfied that the Prosecution had done so upon considering the following evidence.

The Prosecution’s case

9 According to the Prosecution, the relevant BDRs and survey reports falsely represented that the full quantity of oil nominated was delivered to each of the six vessels. The respective chief engineers of each vessel had wrongfully sold, at a price substantially below market rates, a portion of the nominated quantity of oil back to the CBS bunker clerks and Henry Low. The marine surveyors facilitated these illicit “buy-back” transactions by providing false certifications in their survey reports, and were paid “commissions” for doing so by Henry Low and one Kmas Koh, a CBS bunker clerk. I shall term these illicit short supplies as “the buy-back(s)” for convenience. CBS bunker clerks then further short-changed CBS’s customers by surreptitiously supplying even less oil than they were supposed to, and these additionally retained amounts were known as “gains” for CBS. These “gains”, although not directly pertinent to the six charges in question, were relevant to show the appellant’s dishonest intention generally, as the Prosecution had contended that all of these illicit transactions (both the buy-backs and gains) were pursuant to his directions, which resulted in substantial illegal profits for CBS.

The buy-backs

10 The Prosecution adduced evidence from the parties directly involved in each of the six alleged buy-backs. They included Henry Low as well as the respective bunker clerks and marine surveyors. Their evidence revealed that the modus operandi was identical for the subject matter of all six charges. Together, they testified that for each buy-back, the chief engineer and the bunker clerk would have come to an agreement for CBS to deliberately short supply the vessel in question. The marine surveyor would be made aware of this agreement, and would proceed to falsely certify in his survey report that the correct amount of oil had been supplied. Afterwards, Henry Low would board the vessel and pay its chief engineer the agreed price for the buy-back. Later, the marine surveyor would be paid his “commission” (based on the amount of cargo short supplied) for his role in the buy-back by Henry Low (and in one case, Kmas Koh).

11 According to the testimony of one Jeremy Tan (a bunker clerk), the bunker clerk concerned for the buy-backs and gains would prepare three different SMRs:

(a) An internal SMR which reflected all the buy-backs and gains;

(b) A sanitised SMR which would be prepared for the purposes of Maritime Port Authority (“MPA”) inspections; and

(c) A formal SMR (also sanitised) for the customer.

The bunker clerk would also receive a commission based on the amount of buy-backs and gains, and all the said commissions paid out were pegged to the quantity of oil short supplied.

The appellant’s role

12 The bunker clerks gave evidence that the appellant was personally responsible for these practices. The appellant not only knew about the buy-backs and gains – but had also pegged the work performance of the bunker clerks to the amount they could short supply. For instance, it was CBS policy that its bunker clerks were to secure 2% worth of illicit gains from all their bunkering...