Public Prosecutor v Josephat Albert Thomas Fernandez

• Jurisdiction: Singapore
• Judge: Ronald Gwee Tiong Kee
• Judgment Date: 04 February 2009
• Neutral Citation: [2009] SGDC 42
• Court: District Court (Singapore)
• Published date: 19 March 2009
• Citation: [2009] SGDC 42
• Plaintiff Counsel: Sunari Kateni
• Defendant Counsel: Defendant in person
• Year: 2009

4 February 2009

District Judge Ronald Gwee

1. The Defendant said that he thought that he had resigned as a director from the company, and as a consequence had no further responsibilities for the company, under the Companies Act. However, the Law did not permit him to resign, as he was the only locally resident director of the company.

2. The company failed to hold its statutorily-mandated annual general meeting (hereinafter “AGM”) by 31 December 2003, and further failed to lodge its statutorily-mandated annual return (hereinafter “AR”) by 31 January 2004. After the trial, I found that the Defendant had been in default in respect of the failure of the company to hold the said AGM and failure to lodge the said AR, and accordingly convicted him of the 2 charges he faced, under the Companies Act.

3. Josephat Albert Thomas Fernandez (referred to above as, and hereinafter, “the Defendant”) was appointed as a director of the aforesaid company, Kenei Overseas Pte Ltd (hereinafter “the Company”), on 18 July 2000. Since his appointment, and at all material times, the Defendant was the only director of the Company who was ordinarily resident in Singapore. After the Defendant’s appointment and at all material times, the only other director of the Company was one Mr Chang Jong Ta (hereinafter “Mr Chang”), a Taiwanese National, who was apparently resident in Japan.

4. The evidence showed that the last AGM was held by the Company on 12 November 2002. Thereafter, no further AGM was held by the Company. The evidence further showed that the last AR was dated 12 November 2002, and this AR was lodged with the Registrar of Companies (hereinafter “the Registrar”) on 12 December 2002. Thereafter, no further AR was lodged with the Registrar by the Company.

5. The Company consequently fell into default when it failed to hold its AGM by the said, prescribed, latest date of 31 December 2003, and further fell into default when it failed to lodge its AR by the said, prescribed, latest date of 31 January 2004.

6. The Companies Act prescribes that a company director “who is in default” shall be guilty of an offence when the company fails to hold its AGM within the time prescribed (s. 175 Companies Act). Similarly, a company director “who is in default” shall be guilty of an offence when the company fails to lodge its AR within the time prescribed (s. 197 Companies Act).

7. Section 408(3) of the Companies Act explains that the phrase, “officer {in the present instance referring to a director} who is in default” (words in brackets mine) means any officer who “knowingly and wilfully” is guilty of the offence or authorises or permits the commission of the offence.

8. From the evidence put forth, it could not be disputed that the Company was certainly in default in respect of not holding an AGM by the latest prescribed date of 31 December 2003, and was in default in respect of not lodging its AR by the latest prescribed date of 31 January 2004.

9. The evidence further showed that as far as the records maintained by the Accounting and Corporate Regulatory Authority (“ACRA”) showed, the Defendant remained on record as the sole locally resident director of the Company. This is shown in P1. This documentary record could not be disputed, although the Defendant said that he had thought that he had resigned as director from the Company, by virtue of his (purported) letter of resignation of 23 May 2002. It was certain that Section 145 of the Companies Act (as then applied to the Defendant) very clearly did not permit the Defendant to resign or attempt to resign in the circumstances he then found himself in.

10. Section 145(1) of the Companies Act provided that every company “shall have at least two directors one of whom shall be ordinarily resident in Singapore”. The material portions of Section 145(5) provided that a director of a company “shall not resign … unless there are remaining in the company at least two directors, one of whom shall be ordinarily resident in Singapore and any purported resignation … in breach of this section shall be deemed to be invalid.” (emphasis added).

11. It was clear that as at May 2002, when the Defendant intended to resign as a director of the Company, there were only 2 directors: Mr Chang and the Defendant. The Defendant was the only director ordinarily resident in Singapore. Mr Chang was a foreign national and was not ordinarily resident in Singapore. The Defendant would have been keenly aware of these facts.

12. The operation of Section 145 of the Companies Act made the Defendant’s purported resignation in May 2002 patently invalid. The Defendant’s “resignation” would have caused the Company to run foul of Section 145 on 2 counts. There would only be one director (Mr Chang) remaining, and there would not have been any director who was ordinarily resident in Singapore. To remove any doubt, Section 145(5) provided in no uncertain terms that such purported resignation as had been attempted by the Defendant “shall be deemed to be invalid”.

13. In the circumstances, the Defendant’s...