Public Prosecutor v Fan Yow Lee, Ang Lye Siong, Sia Siong Lim

• Jurisdiction: Singapore
• Judge: Toh Yung Cheong
• Judgment Date: 24 April 2014
• Neutral Citation: [2014] SGDC 164
• Court: District Court (Singapore)
• Docket Number: DAC 42696/12 & others
• Published date: 25 June 2014
• Year: 2014
• Hearing Date: 24 April 2014
• Plaintiff Counsel: Ms Haniza Abnass & Ms Sherlyn Neo (Deputy Public Prosecutors)
• Defendant Counsel: Mr Vinit Chhabra (Vinit Chhabra Partnership)
• Citation: [2014] SGDC 164

District Judge Toh Yung Cheong: Introduction

The three accused persons, Fan Yow Lee, Ang Lye Siong, and Sia Siong Lim are directors and shareholders of a building & construction firm known as Siong Builder. They have been accused of giving gratification to a site manager of a multinational conglomerate known as Bovis Lend Lease. ¹

Bovis is a project management company that provides integrated construction solutions for clients. They are active in Singapore and they have played a part in the construction of a number of notable buildings. As a project management company, Bovis is responsible for engaging the necessary contractors to construct these buildings to their clients’ specifications.

One of the contractors that Bovis repeatedly engaged was Siong Builder. In 1994, Siong Builder was engaged as the wet finishing contractor for the Jurong Point project. As they performed well, they continued to worked for Bovis on many other projects.

In 2006, Xilinx, an American Technology, engaged Bovis to construct their Asia Pacific Headquarters at Changi Business Park. This was a major project and Siong Builder was engaged as subcontractors for the substructure and wet architectural work. The two contracts were worth a total of $7.6 million. According to the subcontracts, the work was to be carried out between March 2006 and March 2007.

The Xilinx project was successfully completed and the project received a high grading from the Building & Construction Authority for the quality of the construction work. A few years later, it was discovered that Fan Yow Lee had been going out for drinks and KTV entertainment with a number of persons who were working on the Xilinx worksite. These included Phua Kok Boon, the site manager employed by Bovis, Wong Hock Chuan, a Bovis project manager in charge of Mechanical and Engineering works, and Lim Chin Peng, a resident engineer employed by RSP Architects. Either Fan Yow Lee or Ang Lye Siong would pay the bill and claim the amount from Siong Builder.

The prosecution’s case is that the 3 accused persons, as directors of Siong Builder, had agreed to pay for KTV Entertainment as an inducement to Phua Kok Boon to refrain from showing disfavour in supervising and assessing work done by Siong Builder at the Xilinx worksite. The 3 accused persons now face 8 charges each. Each charge represents a separate occasion where Siong Builder paid for Phua’s KTV entertainment. For ease of reference, the first charge is reproduced below:

You, Fan Yow Lee, are charged that you, a director of Siong Builder Pte Ltd, on or about 21 April 2006, at Lido Palace, 317 Outram Road #05-01 Concorde Shopping Centre, Singapore, did engage in a conspiracy with one Ang Lye Siong and one Sia Siong Lim to corruptly give gratification to an agent, namely Phua Kok Boon, a Senior Site Manager of Bovis Lend Lease Pte Ltd, as inducements for forbearing to do acts in relation to the said Phua Kok Boon’s principal’s affairs, to wit, to refrain from showing disfavour in supervising and assessing work done by Siong Builder Pte Ltd, and in pursuance of the conspiracy and in order to the doing of that thing, an act took place, to wit, Siong Builder Pte Ltd paid for KTV expenses incurred by Phua Kok Boon, which act was committed in consequence of the abetment, and you have thereby committed an offence under section 6(b) read with section 29(a) of the Prevention of Corruption Act (Cap 241).

Issues

The elements of an offence under s.6(b) of the Act are: Giving of gratification The gratification is an inducement or reward (in this case, for refraining from showing disfavour in supervising and assessing the work of Siong Builder) An objective corrupt element in the transaction The gratification was given with guilty knowledge.

As there was no dispute that Siong Builder had paid for the KTV entertainment on the 8 occasions that form the subject matter of the charges, the focus was on the existence of the second and third elements.

The existence of the second element was a key issue in the trial. The prosecution also took pains to stress that their case was not about inducing Phua in return for the "positive act of showing favour, namely by showing leniency to Siong's works." instead, the prosecution stressed that the gratification was in return for refraining from showing disfavour:

The Prosecution's case is that the KTV sessions were intended to induce Phua so that he would not do certain acts towards Siong i.e. by providing late drawings to Siong or picking on faults in Siong's works.²

The idea of an agent being induced into “not doing” or "refraining from" certain conduct is usually used in the context of an agent refraining from doing his duty. For example, a policeman who refrains from arresting a suspect, or a safety inspector who refrains from reporting safety violations. In contrast, the present charges encapsulate the rather complicated idea of Phua being induced into refraining from not performing his duty. That appears to be the same thing as saying that Phua was bribed so that he would perform his duty: If Phua was being bribed so that he would not provide late drawings, is it not the same thing as saying that Phua was bribed so that he would provide drawings on time? If Phua was being bribed so that he would not nit-pick in the inspection or assessment of work, is it not the same thing as saying that Phua was bribed so that he would conduct his inspections or assessments normally?

It is also significant that the prosecution, in setting out their case in their final submissions, focused on the gratification “aligning Phua” with the interests of the accused. The question of whether this was against the interest of Bovis appears to have been neglected.³ Therefore, right from the outset, this case was different from the “paradigm of corruption” referred to in Tey Tsun Hang v PP [2014] SGHC 39 at [18].

I found that the prosecution did not prove beyond a reasonable doubt that the payments of for the KTV entertainment were intended to induce Phua Kok Boon to "refrain from showing disfavour" to Siong Builder. Instead, I found that there was a distinct possibility amounting to a reasonable doubt that Fan Yow Lee arranged for these drinking sessions simply because he liked to drink, was happy to drink in the company of his friends whom he saw daily at the Xilinx worksite, and because he could put these drinks on Siong Builder’s tab. There was also a possibility that Ang and Sia agreed to Siong Builder paying the bill as such drinking sessions provided an informal setting for the discussion of work issues. This judgment sets out the reasons for these findings.

Approach to the Case

As the prosecution has provided a comprehensive outline of the evidence in their submissions, I do not propose to repeat the evidence here though I have included in Annex A the particulars of the 8 charges and at Annex B a list of persons and their significance in this trial.

In the following sections, I deal with the key issue which is the second element: whether or not the gratification was an inducement to Phua to refrain from showing disfavour in the supervision and assessment of Siong Builder's work. As the answer to the issue of whether there was a corrupt element in the charge flows from the finding of the earlier element, I consider both these elements together.

Inducement to refrain from showing disfavour to Siong Builder Was there a breach of the Bovis Code of Conduct?

In Chan Wing Seng v PP [1997] 1 SLR(R)721 at [66], Yong Pung How CJ observed that if rules or laws were breached knowingly, it would be easier for the court to infer that the accused knew what he did was corrupt according to the ordinary and objective standard. The High Court has recently clarified that the above observation relates to the element of guilty knowledge and cannot be employed to establish the objective corrupt element of the offence: Teo Chu Ha v PP [2013] 4 SLR 869 at [18].

In this section, I explain why the prosecution has failed to prove that the Code of Conduct was breached, let alone that it was breached knowingly.

The prosecution led evidence from the Head of Risk and Compliance for the Asia Region. PW5 Kevin Charles Bates testified that Bovis had a Code of Conduct that prohibited employees from accepting gifts from subcontractors if there was a conflict of interest. Unfortunately, Mr Bates was unable to locate a copy of the actual Code of Conduct from the Singapore office which was dated 2006 and 2007. Instead, he testified from memory about an international or universal version of the Code that supposedly applied to Singapore in 2006 and 2007.⁴ It should also be noted that Mr Bates was based in Australia in 2006 and 2007 and was only posted to Singapore in 2010.

On the other hand, many other witnesses claimed that they were not aware of such a prohibition. The alleged recipients of KTV Entertainment, Phua Kok Boon and Wong Hock Chuan testified in court that they were unaware of any Bovis Code of Conduct that prohibited them from going for drinks with the accused even if Siong Builder footed the bill.

The prosecution submitted that the statements Phua and Wong gave to the CPIB show that they knew that they were breaching a Code of Conduct by accepting KTV Entertainment at the time they received the gratification. However, a closer scrutiny shows that the statement shows that at best, they were answering based on their state of knowledge in 2009 when they gave their statements to the CPIB rather than on the state of their knowledge in 2006 when they attended the KTV sessions.

More importantly, their evidence was corroborated by David Ong (PW22), a former managing director of Bovis who worked for the company for 26 years between 1980 to 2006. David testified that he was aware of a code of conduct found within the organisation and structure manual but he could not...