Public Prosecutor v Andrew Tee Fook Boon

• Jurisdiction: Singapore
• Judge: Kessler Soh
• Judgment Date: 20 May 2011
• Neutral Citation: [2011] SGDC 211
• Court: District Court (Singapore)
• Hearing Date: 30 December 2010
• Docket Number: DAC 26592/2010 and Others
• Plaintiff Counsel: Mr G Kannan and Mr Ng Yiwen (Deputy Public Prosecutors) (taking of plea)
• Defendant Counsel: Ms Vala Muthupalaniappan (Deputy Public Prosecutor) (sentencing),Mr Jason Lim Chen Thor (De Souza Lim & Goh LLP)
• Published date: 06 February 2013

District Judge Kessler Soh:

The defendant was Andrew Tee Fook Boon, aged 44 years. He managed the day-to-day running of two businesses—AT35 Services (“AT35”) and Food Royale Trading (“FRT”). AT35 and FRT were engaged in the business of food supply to IKANO Pte Ltd (“IKANO”), which owned and operated the IKEA store in Singapore as the local franchisee of Inter IKEA Systems BV. The defendant faced 80 charges relating to gratification paid to a food services manager of IKANO. He pleaded guilty to 12 charges, and by consent the remaining 68 charges were taken into consideration for the purpose of sentencing. He was sentenced to a total of four months’ imprisonment and a fine of $180,000 (in default 12 months’ imprisonment). The prosecution has appealed against the sentence.

Charges

The charges were brought under s 6(b) of the Prevention of Corruption Act (Cap 241) (“PCA”) read with s 34 of the Penal Code (Cap 224).

Section 6(b) of the PCA states:

6. 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 [...] 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]

One charge to which the defendant pleaded guilty (DAC 26592/2010, marked C50) read as follows:

You [...] are charged that you, on or about the 2nd day of February 2007, in Singapore, together with one Lim Kim Seng and in furtherance of the common intention of you both, did corruptly give to one Leng Kah Poh, an agent, to wit, a Manager in the employ of IKANO Pte Ltd, a gratification of a sum of about $86,226.48 [...] as a reward for showing favour in relation to his principal’s affairs, to wit, by being partial in placing orders for food products with AT35 Services and Food Royale Trading and you have thereby committed an offence punishable under Section 6(b) of the Prevention of Corruption Act, Chapter 241, read with Section 34 of the Penal Code, Chapter 224.

The other 11 charges were similarly worded and related to other payments of gratification on other dates:

Charge 7	Date of payment	Gratification
DAC 26594/2010 (marked C52)	2 April 2007	$53,635.60
DAC 26600/2010 (marked C58)	19 October 2007	$59,226.90
DAC 26601/2010 (marked C59)	1 November 2007	$54,637.20
DAC 26604/2010 (marked C62)	1 February 2008	$91,870.40
DAC 26610/2010 (marked C68)	31 July 2008	$53,319.75
DAC 26611/2010 (marked C69)	31 August 2008	$56,102.18
DAC 26612/2010 (marked C70)	30 September 2008	$55,662.10
DAC 26775/2010 (marked C71)	1 October 2008	$62,771.76
DAC 26614/2010 (marked C73)	30 December 2008	$61,452.15
DAC 26615/2010 (marked C74)	2 January 2009	$72,051.80
DAC 26620/2010 (marked C79)	30 June 2009	$54,063.32

Facts

The defendant admitted without qualification to the Statement of Facts tendered by the prosecution (“SOF”, marked PS1). The facts, which include some additional background information provided by the defendant, are set out below.

Background

The defendant was the sole-proprietor of AT35, a waste management and recycling business registered in 2001. He became acquainted with one Lim Kim Seng Gary (“Lim”) who ran a cleaning business. Lim had been providing cleaning services at the IKEA restaurant at Alexandra Road (which was owned and operated by IKANO) since 1995. In the course of work Lim became acquainted with Leng Kah Poh Chris (“Leng”) who, at the material times, was a food services manager of IKANO.

Food supply business

Sometime in early October 2002, Lim proposed to the defendant to enter into business together to provide food supplies to IKANO. At that time, the food supplies were being provided by Wholesale Food Trader (“WFT”), a business operated by Lim’s brother. Lim informed the defendant that he wanted to replace WFT as the food supplier, but he did not want to appear openly as having any interest in the food supply business as he was already providing cleaning services to IKANO. Lim proposed that the defendant’s AT35 be used to take over the food supply business from WFT, and that both of them each contributed $30,000 as working capital. As AT35 was not doing well in the scrap metal and waste material disposal business, the defendant accepted Lim’s offer.

Subsequent to that, the defendant was introduced to Leng by Lim. Lim informed Leng that AT35 was interested in becoming IKANO’s food supplier. Subsequently it was agreed that should Leng select AT35 as the food supplier for IKANO, Lim and the defendant would reward Leng with one third of any profits earned by AT35 from their dealings with IKANO. (The dates on which these events occurred were not specified in the SOF but were relevant in assessing the defendant’s role and culpability, and are considered later at [33].)

AT35 began to supply food products to IKANO from November 2002, with the defendant running the day-to-day operations of the business. The food supplies were initially priced at a rate that was competitive to that of the previous supplier (WFT). However, as time went on, the prices charged became higher than the market rate, but Leng continued to obtain the food supplies from AT35 at the higher prices.

Subsequently, FRT was set up to take over a part of AT35’s business with IKANO, from August 2005. FRT supplied dry food items and sauces to IKANO, while AT35 continued to supply marinated chicken wings.

Payments of gratification

It was agreed that the profits made by AT35 and FRT in their dealings with IKANO would be divided and shared equally. Two thirds would be shared between Lim and the defendant; the remaining one third would be paid to Leng as a reward. Payments were made to Leng on 80 occasions between January 2003 and July 2009. The defendant would periodically draw out the sums payable from the accounts of AT35 and FRT by way of cheques, encash the cheques and divide the cash into three equal portions. He would then meet Lim and hand over the shares for Lim and Leng; and Lim would give the money to Leng at the latter’s home.

The payments were corruptly given to Leng as rewards for his being partial towards AT35 and FRT in placing orders for food products from them. The payments were made in furtherance of the common intention of Lim and the defendant. For the 12 proceeded charges, the total amount paid was $761,019.64. For all the 80 charges, the total amount paid was $2,389,322.47.

IKANO conducted an internal audit in the middle of 2009, and it was then discovered that food supplies were being purchased from AT35 and FRT at prices significantly higher than the market rate. An internal investigation was carried out by IKANO and the matter was subsequently referred to the Corrupt Practices Investigation Bureau (“CPIB”) for investigation.

Mitigation

Counsel for the defendant (“counsel”) submitted a written mitigation plea (marked DS1) as well as a supplemental mitigation plea (marked DS2). It was highlighted that when the defendant took over the food supply business from WFT in October 2002, he did not know about Leng’s involvement. It was acknowledged, however, that the defendant was complacent in that he continued with the business after learning, from Lim, that Leng would be entitled to a share in the profits of the business. The payments were made to Leng pursuant to their profit-sharing arrangement. None of the payments of gratification was made in exchange of a specified favour. This was the defendant’s first offence of any kind. He had fully cooperated with the investigations. He had also made full restitution to IKANO and obtained a full discharge from liability. He pleaded guilty to the charges. (These points are considered in greater detail below.)

Counsel submitted that a custodial sentence was not necessary and sought that appropriate fines be imposed instead. In the alternative, it was submitted that if the court considered a custodial sentence necessary, then a short term of imprisonment of three to four months would suffice.

Prosecution’s submissions on sentence

The prosecution tendered written submissions on the sentence (marked PS2). It was submitted that there were aggravating factors: the degree of planning involved, the large amount of gratification paid, the long period of time over which the corrupt scheme too place, and the difficulty in detecting the scheme. (These points are considered in more detail below.)

The prosecution submitted that given the aggravating factors, a fine would be an inappropriate punishment and a substantial custodial sentence was warranted. The prosecution urged the court to impose a custodial sentence in the range of nine to 12 months’ imprisonment per charge and to order the sentences in at least four charges to run consecutively. In effect the prosecution was seeking a minimum sentence of 36 to 48 months’ imprisonment.

Sentencing considerations Applicability of s 71(1) of the Penal Code

I shall first deal briefly with a preliminary point. Counsel sought to argue that all the charges emanated from the profit-sharing agreement, and the offence was committed when the first distribution of profit was made to Leng: the payments should not be viewed as separate or distinct transactions. It was submitted that the offences were composite, with each payment being a component part of the same offence or so closely connected to form in reality one offence. In other words, the offences were part of a single transaction as each payment was made under “a...