Public Prosecutor v Ong Chow Hong

• Jurisdiction: Singapore
• Judge: Eddy Tham Tong Kong
• Judgment Date: 19 October 2009
• Neutral Citation: [2009] SGDC 387
• Court: District Court (Singapore)
• Year: 2009
• Citation: [2009] SGDC 387
• Plaintiff Counsel: Deputy SG Jeffrey Chan with DPP Peter Koy and DPP Ong Luan Tze
• Defendant Counsel: Defence Counsel Bernard Doray (Bernard & Rada Law Corp)
• Published date: 04 November 2009

19 October 2009

District Judge Eddy Tham:

The accused had pleaded guilty before me on 6 August 2009 to a charge under section 157(1) of the Companies Act Cap 50 that on 25 November 2005 whilst being a director of Airocean Group Limited (“Airocean”), he did fail to use reasonable diligence in the discharge of his duties of his office as such director, by approving the release of an announcement by Airocean to the SGX-ST without having sight or knowledge of the contents of the announcement, which announcement was entitled “Clarification of Straits Times article on 25 November 2005” and released via SGXNET on 25 November 2005 at 8.13 pm.

Statement of Facts

3 The prosecution has set out a lengthy and detailed statement of facts which is enclosed as part of the records of appeal. Briefly, the accused was at the material time the non-executive Chairman and Independent Director of Airocean.

4 Aircocean was an air cargo logistics group providing services in freight forwarding, airlines general sales agency and air terminal ground cargo handling services. It was also a holding company and all its operations were conducted via its subsidiaries. Two of these wholly owned subsidiaries are Airlines G.S.A. Holdings Pte Ltd (“Airlines GSA”) and WICE Logistics Pte Ltd (“WICE Logistics”).

CPIB Investigations into Airocean

5 On 6 September 2005, officers of the Corrupt Practices Investigation Bureau (“CPIB”) took the Chief Executive Officer and Executive Director of Airocean, one Thomas Tay Nguen Cheong (“Thomas”) to CPIB’s office for questioning in relation to investigations being conducted by them into a case of corruption. At around the same time, 2 other key executives of Airocean’s subsidiaries were also taken from their home to CPIB for questioning on the same matter:

i. Ray Teo – Group Senior Vice President of Airlines GSA and

ii. Bob Lee – Director of Airfreight and Logistics of Wice Logistics

6 After initial questioning, Thomas was instructed by CPIB to direct one Simon Ang Teck Choon (“Simon”), Regional Director of Airlines GSA, who was then in Australia, to immediately return to Singapore to provide information relevant to the CPIB investigations. Simon, as directed, returned to Singapore the next day on 7 September 2005, and reported to CPIB.

7 CPIB officers had questioned Thomas on whether he had given bribes in relation to 2 different transactions between Airoceans’s subsidiaries and other companies in the aircargo industry and specifically if he had given any gratification to:

i. one Chooi Yee Choong (“Chooi”) of Jeststar Asia Airways Pte Ltd (“Jetstar”) in return for Airlines GSA being made its cargo agent; and

ii. one Edward Goh of Lufthansa Technik Logistik Pte Ltd (“Lufthansa Technik”) in return for introducing Lufthansa Technik’s business to WICE Logistics.

8 Thomas admitted to CPIB officers that he had instructed Simon to inform Chooi that if “he (Chooi) helps us, we will help him in future”.

9 On 7 September 2005 at around 9.30pm, after being detained for more than 36 hours, Thomas was arrested under section 6(b) of the Prevention of Corruption Act Cap 241 (“PCA”). He was released on bail but his passport was surrendered to CPIB. Documents such as e-mails from Thomas, business proposals, quotations and cheque payment vouchers concerning relevant transactions had also been compiled for CPIB on CPIB’s instructions.

8 September Board Meeting

10 On 8 September, 5 Airocean directors, namely, Thomas, the accused, Peter Madhavan (“Peter”)- Independent Director, Chong Keng Ban@Johnson Chong (“Johnson”) – Chief Operating Officer and Executive Director and Ong Seow Yong (“Seow Yong”)- Independent Director, convened an urgent Board Meeting to discuss what Airocean should do following what had happened to Thomas.

11 The minutes of the meeting recorded that Johnson had informed the Board that:

i. On 6 September 2005, CPIB had called upon Thomas, Ray Teo and Bob Lee to assist CPIB in an ongoing investigation;

ii. CPIB had requested for and obtained from Airocean all emails of Thomas over a certain period;

iii. Thomas had asked for certain documents such as business proposal to Jetstar, quotations to Lufthansa Technik and WICE Logistics cheque payment vouchers to be prepared for CPIB;

iv. CPIB requested to speak to Simon who was called back from Australia;

v. Out of the 4 Airocean staff questioned by CPIB, only Thomas and Simon had their passports impounded by CPIB; and

vi. Thomas was questioned for 36 hours by CPIB.

12 The minutes of the meeting also recorded that Peter had informed the Board that:

i. Thomas was questioned by CPIB whether he had given any gratification to Edward Goh of Lufthansa and/or Chooi of Jetstar;

ii. Thomas had given a statement to CPIB that he had advised Simon to tell Chooi to assist them in the proposal tendered to Jetstar and that if he (Chooi) helps us, we will help him in future”;

iii. Thomas had sought his own legal advice on the CPIB investigations; and

iv. Thomas’s counsel was of the opinion that in the worst-case scenario, Thomas might be exposed to a criminal charge of offering gratification to Chooi,

13 At the end of the Board meeting, all the persons present including the accused, agreed not to make public about what had happened to Thomas.

Strait Times publishing of news on the CPIB probe on Thomas and the subsequent announcement by Airocean

14 On 25 November 2005, the Strait Times published an article entitled “Aircocean’s chief executive Thomas Tay under CPIB probe” (“the News Article”).

15 SGX on the same morning contacted Aircocean to confirm whether or not Thomas was in fact a subject of CPIB investigations and if so, to seek an explanation as to why the fact that its CEO was under a CPIB probe was not made public. SGX also suggested that pending the clarification, Airocean should request for a halt in the trading of its shares. Airocean accordingly requested for a suspension and SGX imposed a trading halt at 9am on the same day.

16 The trading halt announcement was emailed to all the directors by the Company secretary on the same day at 9.15am. In the same email, the directors, including the accused, were also told that SGX had requested Airocean to send in a clarification on the News Article.

17 The accused also knew that his company will be making a public announcement in response to the News Article. However, that morning, he informed the company secretary that he would agree to any announcement that would be issued by the company so long as it is approved by Peter as he was going off to play golf that day (In mitigation, it was highlighted that the accused was to participate in an official function, the Aljunied Town Council Golf Tournament and Prize Presentation Dinner on the same day).

18 Peter came up with the first draft of the announcement. It was then sent to Aircocean’s solicitors M/s Tan Rajah & Cheah and they came up with an amended draft. Peter then changed the draft with a significant amendment to the second paragraph from:

The Company learnt of the CPIB investigations with regard to certain business transactions involving two of its subsidiaries on 6 September 2005.

to the following:

The Company learnt of the CPIB investigations with regard to practices of some other companies in the Freight Forwarding Industry sometime in early September 2005 when the Company’s CEO Mr Thomas Tay was called for an interview …

19 This change is significant as it conveyed a different presentation of the facts known to the Aircocean Board and was also against the advice of Airocean’s solicitors.

20 Other than a minor change to replace the words “Freight Forwarding Industry” with “Aircargo Industry”, the announcement was released that night after it was circulated to Thomas, Johnson and Seow Yong, The accused’s approval was not sought as he had earlier told the secretary of the...