Ponggol Marina Pte Ltd v Central Provident Fund Board
|Eric Tin Keng Seng
|25 May 2001
| SGMC 27
|19 September 2003
|Magistrates' Court (Singapore)
Grounds of Decision
This is an appeal by the Defendants Ponggol Marina Pte Ltd against conviction on the following charges:
Second charge in CPF Summons No. 059066/2000 (exhibit P1A)
"You, Ponggol Marina Pte Ltd are charged that you on or about 15 January 1997 at Singapore, did fail to pay a sum of $53.00 to the Central Provident Fund Board being a contribution in accordance with the rate of contributions payable as set out in the First Schedule in the Central Provident Fund Act Cap. 36 for the month of December 1996 in respect of your employee namely, Genghis Khan Bin Setarhan, as required by section 7(1) of the said Act within the period prescribed by Regulation 2(1) of the Central Provident Fund Regulations 1987 and thereby committed an offence under section 58(b) of the Central Provident Fund Act (Cap. 36) punishable under section 61(1) of the said Act."
Second charge in CPF Summons No. 059068/2000 (exhibit P2A):
"You, Ponggol Marina Pte Ltd are charged that you on or about 15 August 1997 at Singapore, did fail to pay a sum of $60.00 to the Central Provident Fund Board being a contribution in accordance with the rate of contributions payable as set out in the First Schedule in the Central Provident Fund Act Cap. 36 for the month of July 1997 in respect of your employee namely, Saifin Bin A Wahab, as required by section 7(1) of the said Act within the period prescribed by Regulation 2(1) of the Central Provident Fund Regulations 1987 and thereby committed an offence under section 58(b) of the Central Provident Fund Act (Cap. 36) punishable under section 61(1) of the said Act."
On 21 February 2001, I had rendered my grounds of decision on conviction (exhibit G) which I now reproduce below.
1. The Defendants, a company, face ten charges taken out by the Central Provident Fund Board (the "Complainant") under four summonses for offences under s 58(b) of the Central Provident Fund Act, Cap. 36 ("CPF Act").
Whether Public Prosecutors sanction is required
2. Of the ten amended charges, nine of them referred to offences committed between December 1996 to August 1997. Section 62 of the CPF Act before the 1998 amendment vide Act 30 of 1998 required the Public Prosecutors prior sanction before the court can take cognizance of offences under the CPF Act. This requirement was removed when s 62 was repealed and re-enacted in its present form. A preliminary issue arises as to whether the Public Prosecutors sanction was required in the prosecution of offences committed prior to the 1998 amendment.
3. Mr Daniel John for the Complainant, after consulting the Senior DPP and researched on the point, submitted that a sanction was unnecessary. Relying on authoritative treatises on statutory interpretation, he argued that the principle against retrospectivity does not apply to changes in legal procedures but only to statutes which affect vested rights. A perusal of the relevant Hansards reveals that the repeal and re-enactment of s 62 in 1998 was one of a four-pronged approach to expedite the recovery of CPF arrears. At the Second Reading of the CPF (Amendment) Bill, the Minister explained that (Parliamentary Debates Official Report 1998, Vol 69, cols 290 and 292):
". Since the CPF Board has always and will continue to discharge its powers fairly and impartially, the Public Prosecutor has agreed that such prior approval is not necessary. Hence clause 6 of the Bill repeals the existing section 62 to remove the requirement of obtaining the Public Prosecutors sanction before initiating prosecution under the CPF Act. the removal of the need to seek Public Prosecutors sanction, issue of Notice to Attend Court, new service of Notice to Attend Court and the certification of Board on the non-payment of contributions will save 40 days from the arrears recovery process. It will help to prevent employers from delaying payment of their employees CPF contributions."
4. Section 62 was a procedural and not a substantive provision. Parliaments aim to expedite recovery of CPF arrears had culminated, inter alia, in the repeal and re-enactment of s 62 in 1998. At common law, a repeal of a provision makes it as if it had never been, except as to matters past and close. In fact, anything done after the repeal in purported exercise of a repealed provision is a nullity. In addition, on whether amendment of procedural provisions operates retrospectively, Bennions (Bennions on Statutory Interpretation (3rd Ed), Section 98 at p. 238) commented that:
Because a change made by the legislator in procedural provisions is expected to be for the general benefit of litigants and others, it is presumed that it applies to pending as well as future proceedings. This presumption does not operate where, on the facts of the instant case, to apply it would contravene the principle that persons should not be penalised under a doubtful enactment.
5. Accordingly, I was of the view that the present prosecution may proceed without the Public Prosecutors sanction.
6. In these proceedings, eight of the charges were stood down for the Defendants to take a certain course. The Defendants claimed trial before me on two charges marked P1A (in CPF summons 059066/2000) and P2A (in CPF summons 059068/2000) respectively. In P1A, it was alleged that the Defendants failed to pay a sum of $53 as CPF contribution for December 1996 for an employee Genghis Khan Bin Setarhan ("Genghis Khan"). In P2A, it was alleged that the Defendants failed to pay a sum of $60 as CPF contribution for July 1997 for an employee Saifin Bin A. Wahab ("Saifin").
7. Parties proceeded by way of an Agreed Statement of Facts (ASOF), Agreed Bundle of Documents (ABD-1 to 98), and conditioned statements of all the prosecution and defence witnesses. The prosecution witnesses were Foo Jee Soon, an investigating officer of the Complainant (CS-1); Genghis Khan, an ex-employee of the Defendants (CS-2); and Saifin, an ex-employee of the Defendants (CS-3). The defence witness was Lai Wee Ngen, the managing director of the Defendants (CS-4). Parties also opted to dispense with cross-examination of all these witnesses.
8. The facts of this case are not in dispute. The Defendants operate a club and marina located at 600 Ponggol Seventeenth Avenue almost at the tail end of Ponggol Road. The Defendants club is not served by any public bus. It is a 15 minute walk from the club to the nearest public bus stop outside on Ponggol Road. From there, the bus journey to the nearest housing estate Hougang was about 15 minutes excluding the waiting time. At the material time between November 1996 to July 1997, the club was under construction. There was no canteen around the vicinity. The employees had to buy packet food from the Hougang area and this caused considerable inconvenience to the operational staff working on shift. All the employees were accordingly paid $130 monthly as meal allowance.
9. At the material time, Genghis Khan and Saifin were employed by the Defendants as skippers in respect of vessels operated by the Defendants marina. Under their contracts of employment with the Defendants, Genghis Khan and Saifin were to receive salaries of $1,550 and $1,600 respectively (see ASOF-A and ASOF-B). Genghis Khan was also entitled to a transport allowance of $150 per month under the contract. It is common ground that meal allowance was not stipulated in both their employment contracts and as such the meal allowances were paid to them ex gratia. Genghis Khan was employed from November 1996 to April 1997. For all these months, he was paid $130 monthly as meal allowance in addition to his salary. There was no CPF contribution on his $130 meal allowance. Saifin was employed from July to August 1997. For July 1997, he was paid $151.67 (pro-rated) as meal allowance in addition to his salary. There was similarly no CPF contribution on this meal allowance.
10. It is also not disputed that if CPF contributions were payable in respect of the meal allowances, the Defendants would be liable to pay $53 for Genghis Khan and $60 for Saifin based on a round-off of 20 per cent prescribed rate of contribution by employer on $130 and $151.67 respectively.
11. The Defendants club ceased payment of the meal allowance for all employees, including those who were contractually entitled to such allowance, when the staff canteen became operational in or about August 1997. Upon my query, Mr Liaw Jin Poh for the Defendants confirmed that the staff were provided free food in the canteen since then.
Issue for determination
12. Parties agreed that the only issue before me is whether the payment of ex gratia meal allowance to the two employees constitute payment of "wages" within the meaning of s 2 of the CPF Act.
13. The nub of the Complainants submissions is that the amendment to CPF Ordinance vide Act No. 55 of 1970 broadened the definition of "wages" in s 2. The amendment, it was submitted, introduced two elements of "including any bonus" and "or granted". It was suggested that the old definition of "wages" which only used "due to a person" applied to payments to employees which were contractual in nature. The disjunctive use of "due or granted" following the 1970 amendment thus suggests that "wages" are no longer confined to payments to which employees are contractually entitled but includes payments made to employees although not "due" to them. Mr John also referred me to the relevant Hansards for the 1970 amendment which I shall turn to shortly. Relying on The Oxford Encyclopedic English Dictionary (1991 Ed), Mr John urged me to adopt the dictionary definition of "due" as "owing or payable as a debt or an obligation" and "granted" as "give (rights, property etc) formally; transfer legally".
14. Mr John used the analogy of bonuses and I was urged to take judicial notice that in many employment contracts, bonuses paid at the end...
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