Public Prosecutor v Dong Gui Tian

• Jurisdiction: Singapore
• Judge: Carrie Chan Su-Lin
• Judgment Date: 30 October 2015
• Neutral Citation: [2015] SGMC 34
• Court: Magistrates' Court (Singapore)
• Docket Number: MAC 6087/2013
• Published date: 06 November 2015
• Year: 2015
• Hearing Date: 01 September 2014,23 July 2015,09 February 2015,30 July 2015,18 March 2015,04 September 2014,02 February 2015,26 May 2014,10 March 2014,02 September 2014,05 February 2014,04 August 2015,06 February 2014
• Plaintiff Counsel: Mr Amos Tan and Ms Madhu Satish Kumar
• Defendant Counsel: Mr Rupert Seah Eng Chee of M/s Rupert Seah & Co.
• Citation: [2015] SGMC 34

District Judge Carrie Chan Su-Lin: Introduction

In order to bypass Ministry of Manpower’s criteria for university degrees, there been a rising incidence of foreigners submitting fake university degree certificates in their application for an employment pass. This case centres on the supply of a forged academic certificate to a Chinese National, Li Yang Yang in support of her application for an employment pass. The accused is said to have supplied the forged academic certificate to Li Yang Yang. It involves deception on Ministry of Manpower (“MOM”) which is responsible for the issuance of employment passes.

The accused, Mr Dong Gui Tian (“Dong”) is a Chinese National and a Singapore permanent resident. He is charged under section 22(1)(d) read with section 23(1) of the Employment of Foreign Manpower Act (“EFMA”) for abetment by intentionally aiding a Chinese National, Li Yang Yang (“Li”) to furnish false information to the Controller of Work Passes in an EP Online Declaration Form for an application for an employment pass, by supplying a forged academic certificate to Li on or about mid-May 2009.

On 28 October 2010, the principal offender, Li pleaded guilty to furnishing false information in the form of a forged academic certificate which she knew to be false in material particular to the Controller of Work Passes in her application for an Employment Pass and was convicted of an offence under section 22(1)(d) of the EFMA. Li was sentenced to 4 weeks’ imprisonment.

Dong was found guilty and convicted after trial on the charge and was sentenced to 12 weeks’ imprisonment. As he has appealed against conviction and sentence, I now set out the reasons for my decision.

Charge

The gist of the charge is that Dong intentionally aided Li, by supplying a forged academic certificate to her. The forged academic certificate states that Li graduated from Shandong University of Technology (“SUT”) with a Bachelor’s Degree in Economics Sciences. By providing Li with a forged academic certificate, this allowed her to submit false information to the Controller of Work Passes (“Controller”) in her application for an employment pass which constitutes an offence under section 22(1)(d) of the EFMA.

The amended charge (exhibit C1B) reads:

You are charged that you, on or about mid May 2009, in Singapore did abet by intentionally aiding one Li Yang Yang to furnish information which was false in material particular to the Controller of Work Passes in an “EP Online Declaration Form for an Application for an Employment Pass”, submitted to the Ministry of Manpower on 28 May 2009; to wit you supplied the forged academic certificate which stated that Li Yang Yang graduated from Shandong University of Technology with a Bachelor’s Degree in Economic Science in her application for an Employment Pass, which you knew was false in material particular, which offence was committed in consequence of your abetment, and you have therefore committed an offence under section 22(1)(d) read with section 23(1) of the Employment of Foreign Manpower Act (Chapter 91A), punishable under section 22(1)(ii) of the same Act.

Issue for determination

The issue for determination is whether Dong has supplied the forged academic certificate to Li and in doing so, intentionally aided her to furnish false information to the Controller in support of her application for an employment pass.

In a criminal trial, the court examines the evidence and determines whether the evidence is sufficient to establish each and every element of the offence beyond a reasonable doubt. The prosecution’s case against Dong is based on section 23(1) of the EFMA which sets out the offence of abetment. Section 107 of the Penal Code (Cap. 224) provides that a person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing. The abetment is thus constituted by intentionally aiding a person to commit an offence.

The burden is on the prosecution to prove beyond a reasonable doubt the following ingredients: Dong supplied the forged academic certificate to Li for the application of an employment pass. The academic certificate was false. Dong knew that the academic certificate was false. Dong intentionally aided Li to furnish information which was false in to the Ministry of Manpower in her application for an employment pass, an offence under section 22(1)(d) of the EFMA. The forged academic certificate was material in the employment pass granted to Li.

Prosecution’s case

The prosecution adduced evidence from 4 witnesses comprising: PW1 - Li Yang Yang, foreign employee (“Li”) PW2 - Lum Fu Yi Albert, Manager Jushinjung Samgaetang Pte Ltd (“Lum”) PW3 - Tan Kok Chong, Investigating Officer MOM (“IO Tan”) PW4 - Cathrine Lee, Work Pass Division Officer (“Ms Lee”)

Evidence of Li Yang Yang, foreign employee (PW1)

The material prosecution witness was PW1, Li who testified as follows.

Li is a Chinese National who came to Singapore in April 2009. Her objective in coming to Singapore was to work and obtain Singapore citizenship. However, she did not obtain any employment in Singapore. She positively identified Mr Dong as the agent who obtained the employment pass for her. When asked how Dong helped her get an employment pass, Li replied that “He did everything for me” (NE 5 February 2014 page 5 lines 9 to 10).

Li first met Dong in April 2009 at Tiong Bahru. She was introduced to Dong by her friend, one Ling Ling. During their first meeting, Dong showed her the educational certificates which were necessary for her employment pass application and she paid part of the agent’s fees to him. These educational certificates did not belong to her and she did not study in those universities. When Dong showed her the educational certificates, he told her that he will help her deal with the educational certificates. She testified that Dong told her that the educational certificates were needed to obtain an employment pass. She paid $3,000 in cash to Dong to purchase the academic certificate however he did not issue a receipt and she did not ask for one. Li testified that she did not work in Singapore and her living expenses were sustained by her boyfriend. She met Dong 4 to 5 times and paid him in total, a fee of $19,000.

The academic certificates in the application form for an employment pass were shown to Li (Exhibit P1). Li told the court that she did not study in the University of Science and Technology and that Dong gave her those certificates for the purpose of applying for an employment pass.

Li testified that she did not work for Jushinjung Samgaetang Pte Ltd who was the employer stated in her application form for an employment pass.

Evidence of Cathrine Lee - Work Pass Division Officer MOM (PW4)

Ms Cathrine Lee, Manager from the Compliance and Control Section described the work process of the document screening team in MOM which screens the educational certificates of work pass applicants for any forgery. She described how the academic certificates used in Li’s application for an employment pass were verified against the universities – Shandong Technological University and Shandong University of Science and Technology.

The process to verify academic certificates was described as follows. When work pass applicants submit their education certificates, the Compliance and Control Section will screen them against internal databases. If the certificates appear to be dubious, the certificates are sent for verification. The certificates will be sent to the embassies in which the schools are located. The embassy personnel will then help to forward the certificates to the respective institutions for checks. When the school replies with the verification result, the embassy will forward the results back to them.

Ms Lee testified that the replies from the two universities (Shandong Technological University and Shandong University of Science and Technology), verified that that that Li’s Bachelor Degree and graduation certificates were forged.

Reports of Authentication from Universities – Ancillary Hearing

The prosecution sought to admit in evidence 2 documents - P5i the Reports of Authentication (the “Reports”) pertaining to the academic certificates which were used by Li. The application was made under section 32(1)(k) (iii) and (iv) of the Evidence Act. The defence challenged the admissibility of the Reports on grounds that they are inadmissible hearsay evidence. Accordingly, an ancillary hearing was conducted to determine the issue of the admissibility of the Reports.

In determining such an application, 4 requirements have to be met under section 32(i)(iii) and (iv) of the Evidence Act: Prior notice has been given by the party wishing to admit the statement in the prescribed form under section 32(4)(a) of the Evidence Act. The witness is out of Singapore. It is not practicable to secure the witness’s attendance. The witness has refused to attend as a witness.

As the first and second requirements are met, the issue before the court was whether the prosecution has shown that it is not practicable to secure the witness’s to secure the witness’s attendance and the witness has refused to attend.

Submissions by the Defence

The defence submitted that firstly, the prosecution has made not attempts to bring the maker of the Reports to be a witness. Second, the costs involved in bringing in the witnesses was not by itself, a sufficient consideration to trigger the application of section 32 of the Evidence Act. Third, no serious effort was made to procure the attendance of the relevant witnesses - IO Tan’s attempts since 4 September 2014 to procure the witnesses’ to attend trial in Singapore were manifestly inadequate. Fourth, the prosecution failed to show the court that the witness was unwilling to come into the country.

For these reasons, the defence submitted...