Ong Beng Leong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 01 February 2005
• Neutral Citation: [2005] SGHC 22
• Date: 01 February 2005
• Subject Matter: Use of false documents with intent to deceive principal,Whether appellant knowing documents false,Prevention of Corruption Act,Whether sentence of two months' imprisonment on each of ten charges manifestly excessive,Whether trial judge should have considered appellant's prior military conviction and punishment when sentencing appellant,Statutory offences,Sentencing,Criminal Law,Whether offence requiring actual deception,Meaning of "use" and "other document",Words and Phrases,Criminal Procedure and Sentencing,Section 108(2) Singapore Armed Forces Act (Cap 295, 2000 Rev Ed),Section 6(c) Prevention of Corruption Act (Cap 241, 1993 Rev Ed),Appeals,Whether appellant having intent to deceive
• Docket Number: Magistrate's Appeal No 114 of 2004
• Published date: 02 February 2005
• Defendant Counsel: Winston Cheng and Aaron Lee (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Plaintiff Counsel: K Shanmugam SC, Ganga Avadiar (Allen and Gledhill) and Mimi Oh (Mimi Oh and Associates)

1 February 2005

Yong Pung How CJ:

1 The appellant was convicted in the District Court of ten charges of using false documents with intent to deceive his principal, an offence under s 6(c) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”): see [2004] SGDC 215. Another 57 similar charges were taken into consideration, and he was sentenced to two months’ imprisonment on each of the ten charges. The sentences in three charges were ordered to run consecutively, bringing his total sentence to six months’ imprisonment. He appealed against both conviction and sentence. I dismissed the appeal against conviction but allowed the appeal against sentence. I now give my reasons.

Facts

2 The Singapore Armed Forces (“SAF”) set up the Training Resource Management Centre (“TRMC”) in April 1999. TRMC, which was a consolidation of the SAF’s Training Means Branch and the Training Means Support Branch from the Camp Commandant Office, was tasked with the management and maintenance of all training areas and facilities belonging to the SAF in Singapore.

3 The appellant, a Lieutenant-Colonel with the SAF, was the Commanding Officer (“CO”) of TRMC between 1999 and 2001. As CO, he was responsible for overseeing the entire TRMC, which was broadly organised into the following departments: Administration & Finance, Resources & Operations and Maintenance. The present charges relate to the manner in which the Maintenance Department allocated work to the construction company, Sin Hiaptat.

SAF procedure

4 According to GS Planning Directive No 3 of 2000 (“Directive P77”), the proper procedure for processing requests for maintenance works of up to $5,000 was as follows:

(a) Upon identification of the works required, an approval of requirement form (“AOR”) would be prepared. This internal document would specify the scope of the works and their estimated cost, and also verify that they were necessary and within the budget.

(b) The completed AOR would be sent to the relevant authority for approval. According to Annex C of Directive P77, the relevant approving authority in this case was the CO of TRMC, ie, the appellant.

(c) Once the AOR was approved, the unit could either appoint a Ministry of Defence (“MINDEF”) term contractor to carry out the works, or source for three quotations from independent contractors.

(d) If the unit chose to source for quotations, three separate companies would be invited to submit quotations for the works. A contractor, usually the one who submitted the lowest quotation, would then be selected.

(e) A work order would be prepared and issued to the chosen contractor, who would only commence work after the issue of the work order.

(f) After the completion of the work, the contractor would submit an invoice for payment. The unit would verify the works before making payment.

5 If the value of the works exceeded $5,000, the unit would have to obtain a cost estimate from the Defence Science & Technology Agency – Building and Infrastructure (“DSTA BI”) Regional Office and put up an AOR based on this. The work order for such works would be prepared by DSTA BI instead of TRMC.

The events in TRMC

6 Unfortunately, TRMC’s Maintenance Department failed to comply with the practice outlined above. Instead, maintenance works valued at up to $10,000 were regularly allocated to Sin Hiaptat without first sourcing for two other quotations from independent companies. Ong Chye Tab (“Ong”), the sole proprietor of Sin Hiaptat, also commenced work before any AORs or work orders were prepared. After each project was completed, Ong directed his secretary, Khoo Swee Im (“Khoo”), to prepare a quotation from Sin Hiaptat as well as two forged quotations from other companies. All three quotations were backdated to give the appearance that they were prepared before the maintenance works had commenced. To justify awarding the contract to Sin Hiaptat, Ong also instructed Khoo to ensure that Sin Hiaptat’s quotation was invariably the lowest of the three quotations submitted.

7 Once the quotations were received by TRMC, the staff of the Maintenance Department would prepare and backdate the AORs and work orders to conceal the fact that the prescribed procedure had not been followed. During his tenure as CO, the appellant signed several AORs and work orders relating to these maintenance works. The irregularities were only discovered when Lieutenant-Colonel Phang Chee Keng (“LTC Phang”) succeeded the appellant as CO on 15 December 2001. After some staff members alerted him to the problem, LTC Phang contacted his superior and an investigation was launched.

SAF trial and the present charges

8 After the investigation, the SAF conducted a summary trial against the appellant pursuant to ss 21 and 25 of the Singapore Armed Forces Act (Cap 295, 2000 Rev Ed) (“SAF Act”). The appellant took command responsibility for the breaches, and was fined a total of $2,250.

9 He also faced separate criminal sanction in the form of 67 charges of knowingly using false quotations with intent to deceive his principal, an offence under s 6(c) of the PCA. The charges corresponded to 67 forged quotations submitted by Sin Hiaptat to TRMC. In the court below, the Prosecution elected to proceed on the first ten charges (District Arrest Cases (“DACs”) Nos 48307 to 48316 of 2003), which formed the subject of the present appeals.

The Prosecution’s case

10 According to the Prosecution, the appellant knew that Ong regularly submitted false quotations after each project to create the impression that the work had been awarded to Sin Hiaptat in accordance with proper procedure. The charges against the appellant, which were identical save for differences in the details of the quotations, stated that:

You, Ong Beng Leong, are charged that you, sometime in 2001, in Singapore, being an agent, to wit, the Commanding Officer attached to Training Resource Management Centre in the employ of the Singapore Armed Forces, did knowingly use with intent to deceive your principal, namely the said Singapore Armed Forces, a quotation … in respect of which your principal was interested, and which was false and which to your knowledge was intended to mislead your principal and you have thereby committed an offence punishable under Section 6(c) of the Prevention of Corruption Act, Chapter 241.

The defence

11 As a preliminary point, the appellant took issue with the application of Directive P77 to TRMC, as it only referred to “local camps” and not training areas. In his view, the proper directives were MINDEF Finance Directive 5500/14/C and the General Orders of MINDEF which, read together, entitled him to call for quotations of up to $20,000, rather than the $5,000 limit stipulated in Directive P77.

12 The appellant also disclaimed any knowledge of the irregularities in the paperwork. While he did not dispute that he had signed the AORs and work orders for the offending projects, he claimed that he had no time to examine the quotations in detail. Having many other responsibilities as CO, he was forced to rely on his staff in the department, including Kat Boon It (“Kat”), the head of Maintenance, and his subordinates, Jeff Koh and Patrick Chua.

The decision below

Directive P77

13 The district judge first observed that the appellant was not being charged with breaching Directive P77. The directive was only relevant to the proceedings if it could be shown that the appellant had knowingly breached it, since the Prosecution relied on this to substantiate its case that the appellant knew the quotations were false.

14 After considering the various directives adduced by both the Prosecution and the Defence, the district judge found that the specific references to TRMC and training areas in Annex C sufficiently proved that Directive P77 did apply to TRMC. However, he also accepted that the text of the directive was ambiguous, as the reference to “local camps” may or may not have included training areas under TRMC’s charge. As the appellant’s opinion that the directive did not apply to TRMC was not so outrageous or incredible that it could not be believed, the Prosecution had failed to prove that the appellant had knowingly breached Directive P77. Therefore, the fact that the directive was not complied with did not add anything to the determination of whether the appellant knew that the quotations were false.

The charges

15 The appellant was charged under s 6(c) of the PCA, which provides that:

If any person knowingly gives to an agent, or if an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal, he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both. [emphasis added]

16 Therefore, the essential elements of each of the ten charges against the appellant were that:

(a) he was an agent of the SAF;

(b) the quotations were false;

(c) the quotations were receipts, accounts or other documents in respect of which the SAF was interested;

(d) he had used the quotations knowing they were false and intended to mislead the SAF; and

(e) he intended to deceive the SAF.

17 It was undisputed that the quotations were false (sub-para (b) of [16] above). The district judge also had little difficulty in finding that the appellant was an agent of the SAF, and that the quotations were documents in respect of which the SAF was interested (sub-paras (a) and (c) of [16] above). The main issues in contention were:

(a) whether the quotations were “used” within the meaning of s 6(c) of the PCA;

(b) the extent of the appellant’s knowledge of the false quotations; and

(c) whether the appellant intended to deceive the SAF.

“Use” in s 6(c) PCA

18 Drawing...