Public Prosecutor v Ng Han Bee

• Judge: Shawn Ho
• Judgment Date: 12 January 2022
• Neutral Citation: [2022] SGMC 3
• Citation: [2022] SGMC 3
• Court: Magistrates' Court (Singapore)
• Published date: 20 January 2022
• Docket Number: Magistrate Arrest Case No. 900324 of 2021 & Ors
• Plaintiff Counsel: Gregory Gan and Joel Lim (Ministry of Manpower)
• Defendant Counsel: Chung Ting Fai and Charmian Ong Xiang Ting
• Subject Matter: Criminal Law,Statutory Offences,Employment of Foreign Manpower Act,Criminal Procedure and Sentencing,Impeachment,Parity,Penalty
• Hearing Date: 19 October 2021,10 January 2022,18 October 2021,12 January 2022

District Judge Shawn Ho: Introduction

The Accused claimed trial to three charges under the Employment of Foreign Manpower Act.

He argued that he had only fetched Song Luping for the airport, medical check-up, Ministry of Manpower, and Cheng Seng Motor, as a favour to his busy friend, one “Quan Quan”. The Defence described the Accused as a Good Samaritan.

All things considered, the Prosecution proved its case beyond a reasonable doubt against the Accused. He was convicted on all the charges.

The Accused was sentenced to 7 months’ imprisonment and a fine of $28,000 i/d 10 weeks’ imprisonment. Under s 23A of the EFMA, he was ordered to pay $20,800 i/d 6 weeks’ imprisonment.

I set out my reasons.

Charges and legal context

The Accused faced three charges under the Employment of Foreign Manpower Act (Cap. 91A)(“EFMA”):

You, Ng Han Bee, are charged that you, sometime in January 2019, in Singapore or elsewhere, did receive directly from one Song Luping, a sum of $12,000 via WeChat app as consideration for her employment as a sales executive under Cheng Seng Motor (UEN: 05502800D), and you have thereby committed an offence under section 22A(1)(a) of the Employment of Foreign Manpower Act Chapter 91A (2009 Rev Ed), punishable under section 22A(2) of the same Act.¹

You, Ng Han Bee, are charged that you, sometime in December 2018, in Singapore, did engage in a conspiracy with Chia Siew Boon Matthew (“Chia”), the sole proprietor of Cheng Seng Motor, to obtain a Work Pass for a foreign employee, Song Luping (“Song”), to work for Cheng Seng Motor, a trade or business that did not require the employment of such a foreign employee and failed to employ her, to wit, and in pursuance of that conspiracy, an act took place on 9 January 2019, to wit, Chia applied for an S Pass for Song to work as a sales executive for Cheng Seng Motor, which act was committed in consequence of your abetment; and you have thereby committed an offence under section 22B(1) read with section 23(1) of the Employment of Foreign Manpower Act, Chapter 91A, and punishable under section 22B(1) of the same Act.²

You, Ng Han Bee, are charged that you, sometime in February 2019, in Singapore, did receive directly from one Song Luping, a sum of $12,600 as a condition for her employment as a sales executive under Cheng Seng Motor, to wit, you collected the said sum from Song Luping through an online app called we-chat and the said payment was made in order for her to hold on to the work pass as a sales executive under Cheng Seng Motor and free-lanced as a performing artiste around Singapore and you have thereby committed an offence under section 22A(1)(a) of the Employment of Foreign Manpower Act (Chapter 91A) (2009 Rev Ed), punishable under section 22A(2) of the same Act.³

During the trial, the Prosecution amended the three charges. Section 131 of the Criminal Procedure Code was engaged. Both the Prosecution and the Defence declined to recall any witnesses.⁴

Agreed statement of facts

Sometime before 9 January 2019, the Accused introduced Song Luping (“Song”)⁵ of the People’s Republic of China to Chia Siew Boon Matthew⁶ (“Chia”)⁷.⁸

Chia was trading as Cheng Seng Motor (UEN: 05502800D) with a registered address at 1 Kaki Bukit Avenue 6, #01-49, Autobay @ Kaki Bukit, Singapore 417883.⁹

On 9 January 2019, Chia made an S Pass application for Song to work as a sales executive with Cheng Seng Motor through his employment agent Multi lnternational Employment Pte. Ltd. (EA Licence No. 07C4004).¹⁰

On 18 January 2019, Song’s S Pass application was approved and an in-principle approval was issued to Song. A copy of the in-principle approval dated 18 January 2019 is at Annex A of the Agreed Statement of Facts (“ASOF”).¹¹

On 29 January 2019, Song arrived in Singapore. On 1 February 2019, Song underwent the required Medical at MCR Clinic Pte. Ltd. (UEN: 201430682D) at 633 Veerasamy Road #01-118 Singapore 200633.¹²

Subsequently, on 8 February 2019, Song signed a declaration form stating that the information in her application for an S Pass is true and correct. Chia also signed the declaration form on the same day as director of Cheng Seng Motor. A copy of the signed declaration form dated 8 February 2019 is at Annex B of the ASOF. The Accused received from Song, through WeChat, at least $24,000 in two instalments, sometime in January 2019 and February 2019 respectively.¹³

However, Song was never employed under Cheng Seng Motor because the business did not require her as a Sales Executive. Song did not perform any work for Cheng Seng Motor. Song showed up at the premises of Cheng Seng Motor and posed for a few photographs of her pretending to work at Cheng Seng Motor.¹⁴

Instead, from 8 February 2019 to sometime in April 2019, Song freelanced as a Performing Artiste at various night clubs around Singapore.¹⁵

On 9 September 2021, Song pleaded guilty to one charge under s 10(1) and punishable under s 10(2)(a) of the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) (“EFMA”), with one charge under s 22(1)(d) EFMA being taken into consideration for sentencing. She was fined $6,000 (i/d three weeks’ imprisonment) on the same day. The charges and statement of facts pertaining to her guilty plea are at Annex C of the ASOF.¹⁶

On 20 May 2021, Chia pleaded guilty to one charge under s 22B(1) EFMA and one charge under s 22A(1)(a) EFMA. One charge under s 22A(1)(b) was taken into consideration for sentencing. Chia was sentenced to six months’ imprisonment with a $3,000 penalty for the charge under s 22B(1) EFMA and a fine of $11,000 (i/d four weeks’ imprisonment) for the charge under s 22A(l)(a) of the EFMA. The charges and statement of facts pertaining to his guilty plea are at Annex D of the ASOF.¹⁷

Prosecution’s case

The Accused engaged in a conspiracy with Chia to obtain an S pass for Song in relation to Cheng Seng Motor without her actually working for the company.¹⁸ The Accused received $24,600 from Song.

Defence’s case

The Accused had only fetched Song for the airport, medical check-up, Ministry of Manpower, and Cheng Seng Motor, as a favour to his busy friend, one “Quan Quan”.¹⁹ The Accused was not paid.²⁰ Essentially, the Accused was a Good Samaritan.

There was no written agreement between the Accused and Song. Song did not have the records of her WeChat communication with the Accused.²¹

The Accused is not an employment agent; he is an assistant at pubs.

Issues to be determined

The issues to be determined were: What was the sum of $24,600 used for (‘Issue 1’); What was the provenance of the educational certificate for the S pass application (‘Issue 2’); What were the Accused’s role and interaction with Song Luping (‘Issue 3’); and Why were photographs of Song Luping taken at Cheng Seng Motor (‘Issue 4’).

Issue 1: What was the sum of $24,600 used for?

It was undisputed that the Accused received from Song at least $24,000. The ASOF stated that:

The Accused received from Song, through WeChat, at least $24,000 in two instalments, sometime in January 2019 and February 2019 respectively.²²

Song testified that they agreed that she would pay the Accused, who would then ready the S pass for her to work in Singapore as a singer.²³ The Accused told Song that she did not have to report to the office, i.e. Cheng Seng Motor.²⁴ Song did not know whether the money would be paid to Chia for Cheng Seng Motor.²⁵

The Accused changed his testimony on how much of Song’s money remained in his WeChat account. During his examination-in-chief, he said that he still had $18,000, which was $24,000²⁶ from Song minus $6,000 (viz. $2,000 per month for 3 months) that he had handed to Chia.²⁷ However, in cross-examination, he claimed that he only had $15,000, which was $24,000 - $6,000 - $3,000, with the $3,000 given to the employment agent.²⁸

Notably, this $3,000 was not mentioned at all during his examination-in-chief. The Accused also produced no documentary evidence pertaining to this $3,000.²⁹

After sifting the Accused’s testimony, there remained many unanswered questions about the money that the Accused had asked Song to transfer to his WeChat account. First, why did the Accused hold onto a fairly large sum of money? As the money had been transferred to him in January and February 2019,³⁰ he had kept the money for close to three years.³¹ This cast doubt on his claim that he had not benefitted financially in helping Song to find employment in Singapore.

Second, the Accused was alive to the suspicious financial arrangement. For example, why did the Accused have to transfer $2,000 every month for Song to Chia?³² If Song was indeed Chia’s employee, why would the employee have to pay the employer?

On a related note, why did Song transfer the money to the Accused and not directly to Chia? The Accused claimed that Song did so because she could only transfer money using WeChat as Song did not know Chia and she was in China.³³

I did not accept the Accused’s claim because Song came to Singapore and met Chia, and Song would be able to hand the money directly to Chia. Furthermore, the money was not handed to Chia in a lump sum; instead, the Accused said that he handed some money to Chia over a few months (i.e. when Song was already in Singapore).³⁴ And Song had transferred $12,600 to the Accused after she had landed in Singapore.³⁵ The above points militated in favour of the conclusion that the Accused was Song’s employment agent and played an integral role in the criminal machination.

Third, the numbers do not appear to add up. For example, the Accused claimed that he had handed $6,000 (viz. $2,000 per month for 3 months) to Chia; however, this differed from his Defence Counsel’s cross-examination of Song that it was supposed to be $2,000 every 2 months.³⁶ Furthermore, at a rate of $2000 per month, the $24,000 would run out in 12 months, and would not last for 24 months.

What...