Public Prosecutor v Liang An Wey

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 06 October 2023
• Neutral Citation: [2023] SGDC 231
• Court: District Court (Singapore)
• Docket Number: District Arrest Case 908742 of 2021 & anor
• Hearing Date: 05 October 2023,05 July 2023,09 January 2023,10 January 2023,11 January 2023,12 January 2023,13 January 2023,16 January 2023,18 January 2023,19 January 2023,20 January 2023
• Citation: [2023] SGDC 231
• Year: 2023
• Plaintiff Counsel: DPPs David Menon & Sapna Jhangiani (Attorney-General's Chambers)
• Defendant Counsel: Eugene Thuraisingam, Johannes Hadi, & Hilary Low (Eugene Thuraisingam LLP)
• Subject Matter: Criminal Law,General exceptions,Slight harm,Cheating,$8,000 cheated,Whether harm so slight as not to constitute an offence,How assessment is to be made,Section 95 Penal Code 1871,Evidence,Proof of evidence,Proof beyond reasonable doubt on the totality of the evidence,Evidential burden on accused person to prove his mental state when making representations which are factually false,Accused person running primary defence (that he consciously made the representations believing them to be true) and alternative defence (that he made the representations carelessly),Implications of running factually inconsistent defences,Principles,Expert evidence,Prosecution failed to call an expert to rebut defence expert's opinion that the accused person's persistent complex bereavement disorder had affected his ability to form a dishonest intent to cheat,Whether this gives rise to reasonable doubt,Solicitation of bribe by accused person based on evidence of sole witness,Whether evidence is unusually convincing,Factors for consideration,Whether evidence is corroborated,Witness reported the solicitation of bribe to his employer,Whether employer's evidence regarding the report constitutes corroboration,Words and Phrases,"Harm"
• Published date: 14 October 2023

District Judge Kow Keng Siong: Introduction

Liang An Wey (“the Accused”) claimed trial to the following charges:

Cheating Charge

You, […] are charged that you, sometime between June and July 2013, in Singapore, did deceive Singapore Post Limited (“SingPost”) that you were employed at GSM Holdings from 2012 at a monthly salary of $12,500 with an allowance of $2,000, by providing false information regarding your employment history and remuneration in the documents submitted to SingPost for a job application, and thereby dishonestly induced SingPost to deliver property to you, namely, salary amounting to $8,000, and you have thereby committed an offence under Section 420 of the Penal Code (Cap 224, 2008 Rev Ed).

[emphasis added]

Corruption Charge

You, […] are charged that you, sometime between March – June 2015, in Singapore, being an agent, to wit, a Senior Vice President in the employ of Singapore Post Limited (“SingPost”), did corruptly attempt to obtain gratification of $1,000,000 from one Wong Siaw Fun, Chief Operating Officer of Bintai Kindenko Pte Ltd (“Bintai”), as an inducement to do an act in relation to your principal’s affairs, to wit, to recommend Bintai as a preferred sub-contractor for air conditioning and mechanical ventilation, electrical installation, and security works in respect of construction work to be undertaken on the SingPost Centre located at 10 Eunos Road, and you have thereby committed an offence under Section 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

[emphasis added]

At the end of the trial, I convicted the Accused on the two charges. In this judgement, I will explain how I have arrived at my decision.

Cheating Charge Undisputed facts

I begin by setting out the facts for the Cheating Charge. It is not disputed that on 28 June 2013, the Accused applied for the position of Vice President (Project Execution) with SingPost. On 12 July 2013, SingPost (a) offered the Accused the job at a salary of $15,000/month and (b) gave him a form titled “Application for Appointment”¹ (“Application Form”)² to complete if he wished to take up the offer.

It is not disputed that in connection with this job application, the Accused had made the following representations (“Representations”): In his Curriculum Vitae (“CV”) which supported the job application,³ the Accused stated that (i) he had been employed as “Head of Project Management” at GSM Holdings (“GSM”) since August 2012, and (ii) was at the material time drawing a salary of “S$12,500 + S$2000 fixed transport allowance”.⁴ In Application Form which the Accused eventually signed and submitted to SingPost, it is stated that the Accused had been a “Director” at GSM and had drawn a salary of $12,500 + $2,000 allowance.

It is also not disputed that the Accused (a) was never a director at GSM, (b) did not sign an employment contract with them, and, importantly, (c) had never receive any salary or CPF contributions from them.

The Accused did perform some work in connection with GSM. This came about through his friend, Gary Tan Yew Seng (“Gary”), a GSM director and shareholder. At the material time, GSM was building a factory (“Factory Project”). As Gary was unfamiliar with matters relating to building permits, he asked the Accused to help. The Accused assisted Gary to review and advise on the relevant documents on an ad hoc basis. Gary made at least one verbal offer to pay the Accused for his services. However, nothing materialised from this.⁵

After the Accused submitted the Application Form, SingPost employed him at a salary of $15,000/month. About eight months later, they increased his salary to $18,000/month following a performance review.

Parties’ case

The case for the Prosecution and the Defence regarding the Cheating Charge is as follows:

	Prosecution’s case	Defence’s case
(a)	The Representations are false.6	The Representations are “not entirely false”.
(b)	The Accused had made the Representations with a dishonest intent – to induce SingPost into offering him a higher salary. Note. It is not the Prosecution’s case that the Representations were made to induce SingPost to hire the Accused.7	In the alternative, the Accused did not intend to deceive SingPost8 – he had made the Representations due to “inadvertence or carelessness” caused by his intense grief over his mother’s passing in February 2012.
(c)	The Representations had induced SingPost to start the salary negotiations at $15,000/month and to eventually offer the Accused the job at that salary. If not for the Representations, SingPost would have started the negotiations at $14,000/month.	The Representations did not induce SingPost to hire the Accused and to offer him a salary of $15,000/month.
(d)	Given that the Accused had received excess salary at $1,000/month for eight months (before he received a pay rise), the financial loss caused to SingPost by the deception is $8,000 (i.e., $1,000 x eight months)9	The harm caused to SingPost is so slight such that the Accused’s deception (if any) does not amount to an offence pursuant to s 95 of the Penal Code.

Corruption Charge Undisputed facts

I now come to the facts for the Corruption Charge. It is not disputed that after the Accused commenced employment with SingPost, he took charge of the SingPost Centre redevelopment project (“Project”).¹⁰

One of the contractors which had tendered for the Project is Shimizu Corporation (“Shimizu”). In its tender offer to SingPost (“Tender Offer”),¹¹ Shimizu proposed to employ Bintai Kindenko Pte. Ltd. (“Bintai”) as a subcontractor for the Project’s air conditioning and mechanical ventilation, electrical installation, and security works (“Relevant Works”).¹²

While the Tender Offer was still under evaluation, the Accused exchanged WhatsApp messages with Wong Siaw Fun (“Wong”), Bintai’s Chief Operating Officer. On at least two occasions, he also met Wong. During one of these meetings, the payment of a $1M-bribe in connection with Bintai’s participation in the Project was raised by one of the parties. The Accused did not report to SingPost that Wong had offered him a bribe.¹³

The bribe was not paid. During a tender interview on 4 June 2015, the Accused requested that Bintai be excluded from Shimizu’s tender proposal. On 24 August 2015, Shimizu won the tender. They did not appoint Bintai as their subcontractor.

Parties’ case

The case for the Prosecution and the Defence regarding the Corruption Charge is as follows:

	Prosecution’s case	Defence’s case
(a)	During the meeting described in [11] above, the Accused requested the bribe as an inducement for Bintai to be appointed the subcontractor for the Relevant Works.	During the meeting, Wong offered the bribe. The Accused rejected this offer.
(b)	The Accused instructed Shimizu to exclude Bintai from their Tender Offer as Wong did not act on his request for a bribe.14	The Accused requested Shimizu to exclude Bintai because he was concerned that Bintai would be unable to commit sufficient manpower to the Project (“committed manpower issue”).
(c)	Wong’s testimony should be believed because he is a credible and reliable witness.	Wong’s testimony should be disbelieved because it is not “unusually convincing” and not corroborated.15

Key issues and findings

The key issues at the trial and my findings on them are as follows:

	Cheating Charge
	Key issues	Findings
(a)	Are the Representations false?	Yes.
(b)	Did the Accused make them with a dishonest intent?	Yes.
(c)	Did the Representations induce SingPost to offer the Accused a salary higher than what they would otherwise have offered?	Yes.
(d)	Is s 95 of the Penal Code applicable?	No.
	Corruption Charge
	Key issues	Findings
(e)	Did the Accused solicit the bribe, or was it Wong who had made the offer?	The Accused had solicited the bribe.

I will now explain how I have arrived at the above findings.

My decision – Cheating Charge Legal requirements

I begin by summarising the legal requirements for the offence of cheating under s 420 of the Penal Code. Three elements must be proved to make out the offence. First, the accused person has made a false representation with the intention of causing the victim to believe it to be true. Second, the accused person has made the false representation with a dishonest or fraudulent intent. Finally, the victim was induced by the false representation into delivering property to the accused person or some other individual: Gunasegeran s/o Pavadaisamy v Public Prosecutor [1997] 2 SLR(R) 946 at [42] – [44]; Rahj Kamal bin Abdullah v Public Prosecutor [1997] 3 SLR(R) 227 at [24].

Having set out the legal requirements for cheating, I will now explain why they are satisfied in the present case.

Representations are false The Representations

I begin with the threshold issue of whether the Representations are false. To recap, they consist of three elements. First, the Accused had been a director at GSM since August 2012. Second, the Accused had also been employed as “Head of Project Management” at GSM. Finally, his pay package at GSM was $12,500 + $2,000 transport allowance.

Why Representations are false

I find the Representations are false. My reasons are as follows. First, it is not disputed that (i) the Accused was never a director at GSM, (ii) he did not sign an employment contract with GSM, and (iii) he did not receive any salary or CPF contributions from GSM. Second, Gary had testified that (i) the Accused was not involved in any GSM project other than the Factory Project, and (ii) his title for that project was “project director advisor” – and not “Head of Project Management”...