Public Prosecutor v Derek Felipe Lee Zong Han

• Jurisdiction: Singapore
• Judge: Kan Shuk Weng
• Judgment Date: 07 April 2017
• Neutral Citation: [2017] SGMC 18
• Published date: 19 September 2017
• Hearing Date: 10 March 2017
• Docket Number: NS No. 900071 of 2017
• Plaintiff Counsel: The surety in person
• Court: District Court (Singapore)

District Judge Kan Shuk Weng:

On 21 January 2016, Derek Felipe Lee Zong Han (“the Surety”) stood bail for one Lim A Tiang (“the Accused”) for the amount of $10,000. The Accused was facing two charges under section 5(1) read with section 23(1) of the Employment of Foreign Manpower Act (Chapter 91A, Revised Edition 2009) (“the Act”) for conspiring with her husband, Tan Kang Han (“Tan”), to employ a foreign worker without a valid work pass. As the Accused had a previous conviction for a similar offence, she was liable for enhanced punishment under section 5(6)(b)(i) of the Act which was a fine of not less than $10,000 and not more than $30,000, and with imprisonment for a term of not less than one month and not more than 12 months.

The Accused and Tan were scheduled for trial before me on 13 and 14 February 2017 at 9.30 am. However, they were not present in court at 9.30 am on the first day of trial. The Surety was also absent. The Accused was represented by SK Kumar Law Practice LLP and counsel informed me that he had managed to speak to the Accused that morning. The Accused informed him that both she and Tan were ill and would not be attending the trial. However, counsel was unable to produce a medical certificate excusing the Accused’s attendance in court.

I stood the case down till the afternoon for the Accused and Tan to attend, or produce a medical certificate certifying that she and Tan were unfit to attend court. However, the Accused and Tan again failed to turn up at 2.30 pm. The Surety was also not present. A Warrant to Arrest was issued against the Accused and Tan, and a notice was sent to the Surety informing him to pay the amount of $10,000 or to attend on 10 March 2017 to show cause on why the payment of the $10,000 should not be enforced against him.

On 8 Mar 2017, I fixed the Warrant to Arrest against the Accused and Tan for review on 10 March 2017. The review was fixed at the behest of counsel who applied for the Warrant to Arrest to be cancelled as the Accused and Tan intended to surrender themselves.

Show cause proceedings

At the show cause hearing, the Surety appeared in person and informed me that he found out only subsequently that the Accused was supposed to attend on 13 and 14 February 2017 for trial.

The Surety further informed me that although he had signed the bail bond, he did not know what his responsibilities were as a surety, other than to ensure the Accused’s court attendance in January 2016. He said that while he could read English, he did not pay attention to the duties of a surety which were printed on the bail bond. The Surety admitted that he had not kept in touch with the Accused on a regular basis before 13 February 2017. He did not know the Accused very well and was a customer of the Accused when she called him sometime last year to be her surety. From the time the Surety stood bail for the Accused on 21 January 2016 till the time of the trial, he had only contacted the Accused once or twice as it was “a bit hard” for him to contact her. He did not elaborate on why it was difficult for him to contact her.

Even after the Accused’s non-attendance in court on 13 February 2017, the Surety did not appear to have made any effort to secure her arrest or attendance in court. He was not aware that the Accused’s Warrant to Arrest was fixed for review on the same day as his show cause proceedings, and that the Accused intended to surrender herself. In any event, the Accused and Tan failed to turn up for the review. Instead, counsel for the Accused came and informed me that Tan was taken ill on his way to court and had to be conveyed to the hospital. However, no reason was given for the Accused’s failure to attend.

I did not find that the Surety had shown cause and invited the Surety to mitigate. In mitigation, he pleaded that he be given a chance, and that he would ensure the Accused’s attendance at the next court date. He said that he was a lay person and had stood bail for the Accused out of compassion.

The decision of the court The law of forfeiture

The duties and obligations of a surety are set out in section 104(1) of the Criminal Procedure Code (Chapter 68, 2012 Revised Edition) while sub-section (2) sets out the consequences of a breach by the surety:

Duties of surety

104.—(1) A surety must — (a) ensure that the released person surrenders to custody, or makes himself available for investigations or attends court on the day and at the time and place appointed for him to do so; (b) keep in daily communication with the released person and lodge a police report within 24 hours of losing contact with him; and (c) ensure that the released person is within...