Public Prosecutor v Subramaniam s/o Muneyandi

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 29 October 2003
• Neutral Citation: [2003] SGDC 259
• Court: District Court (Singapore)
• Published date: 17 February 2004
• Year: 2003
• Plaintiff Counsel: Mr Aaron Lee (Deputy Public Prosecutor)
• Defendant Counsel: Mr Philip Fong with Ms Cho Pei Lin (Harry Elias Partnership)
• Citation: [2003] SGDC 259

The charges & the appeal

1 This Judgement arises from an appeal against conviction.

2 The Accused, Mr Subramaniam s/o Muneyandi, was convicted after trial on two amended charges under section 6(a) of the Prevention of Corruption Act.[1] These charges alleged that in June and December 2002, whilst employed as a Commercial Manager with Singapore Technologies Marine Limited (STM), the Accused had corruptly obtained for himself gratification amounting to a total of $50,000 in the form of 2 loans from one Tan Wah Seng (Tan), the Operations Director of Omega Pro Tech (1996) Pte Ltd (Omega), as an inducement for recommending the award of STM’s ship piping repair jobs to Omega.

3 After the conviction and hearing his mitigation, I sentenced the Accused to a total fine of $25,000 and ordered him to pay $40,000 as penalty.

Undisputed facts

Background

4 STM was engaged in the business of ship repair. At all material times, the Accused was one of its two managers in the Commercial Department. In general, the Commercial Department was responsible for preparing quotations on tenders received, preparing bills, and assisting the Production Department to obtain quotations from subcontractors.[2]

5 Tan, on the other hand, was the Operations Director of Omega, one of STM’s resident piping subcontractors.[3]

How piping jobs were awarded at STM

6 There were essentially three types of piping jobs at STM – tariff jobs, tender jobs, and ad hoc (sometimes also known as ‘urgent’) jobs.

7 For tariff jobs (ie jobs with prices pre-determined by STM), these would be awarded to resident subcontractors on a rotation basis. Under the rotation system, a subcontractor who finished his job ahead of the rest would be the first to be considered for the next tariff job to be awarded. Other factors however, such as a subcontractor’s manpower availability, skill, and ship owners’ preferences would also be considered. The selection of the successful subcontractor was normally made jointly by STM’s Ship Repair Manager, Commercial Executive and Lim Lye Soon (Head, Piping Department). Lim Lye Soon’s role was to maintain a record of subcontractors’ availability and previous job rotations. The Commercial Executive’s task, on the other hand, was to offer inputs on the subcontractors’ experience and pricing. The Ship Repair Manager had the final say on which subcontractor to use.[4]

8 As for tender (otherwise known as ‘bidding’) jobs, these were awarded to resident subcontractors who assisted STM’s initial bid for the ship repair contract.[5] A Commercial Executive and Lim Lye Soon would select the resident subcontractors to quote for the purpose of preparing STM’s bid. After the ship repair contract had been awarded to STM, the Ship Repair Manager, Commercial Executive and Lim Lye Soon would then decide which subcontractor to use. In the event of a deadlock between the three, Poon Ter Ter (Vice President, Operations) would decide on the subcontractor.[6] For big projects and projects with tight schedules or severe penalty clauses, Mok Kim Whang (Senior Vice President, STM) would also be involved in the decision making process.[7]

9 Finally, ad hoc piping jobs. These usually involved (a) repeat STM customers who preferred a particular subcontractor, (b) jobs requiring special skills which only a certain subcontractor might possess, or (c) urgent jobs. For these jobs, the price of the subcontract will be based on STM’s bid price or tariff, but subject to further negotiation. The Commercial Executive would recommend which subcontractors to use. The final decision rested with the Piping Department Head and the Ship Repair Manager.[8]

10 The Accused was not directly involved in the selection of resident subcontractors for any of the above jobs.

11 STM had a policy of helping its resident subcontractors survive during slack periods. All Commercial Managers, Commercial Executives, Operations Managers and Ship Repair Managers were expected to help a resident subcontractor who did not have enough job to ensure its survival – either by giving him jobs on rotation, or offering to take over his workers at a fixed rate. The awarding of jobs in such instances were however subject to costs, availability of the subcontractors’ manpower and skills, ship owners’ preferences as well as the interests of the company.[9]

The loans

12 Sometime in June 2002, the Accused approached Tan to borrow $30,000 to purchase a second-hand car. That was the first time the Accused approached Tan for a loan.[10] About two to three weeks after the loan request, Tan gave the Accused $30,000 in cash.

13 In December the same year, the Accused approached Tan for another loan – this time $20,000 – to help pay his condominium’s progress payment. About a week later, Tan handed $20,000 in cash to the Accused.

14 By the time of the trial, the Accused had repaid Tan only $10,000 in January 2003. This was after CPIB commenced investigations.[11]

15 STM had a clear policy prohibiting its employees from accepting gifts from parties who had official dealings with the company. This was to prevent staff from being unduly influenced in the discharge of their duties.[12]

16 There was however no written policy prohibiting STM’s employees in taking loans from its subcontractors.[13]

17 There was no evidence to suggest that the Accused had been biased towards Omega in the settlement of their invoices, or had shown the company any favour.[14]

Issues at the trial

18 It was the Prosecution’s case that the Accused had corruptly obtained the two loans as inducements for showing favour to Tan’s company, namely to recommend the awarding of STM contracts to Omega.

19 The Accused denied this contention, claiming that the two payments amounting to $50,000 were merely friendly loans, given and received without any corrupt intent. According to the Accused, he had the intention to eventually repay Tan the loans.[15]

Prosecution’s evidence

20 During the trial, the Prosecution adduced evidence from several witnesses, including members of STM’s senior management. For this part of the Judgement, I will focus on the evidence of the main prosecution witness, Mr Tan Wah Seng (Tan).

Tan Wah Seng

21 June loan: According to Tan, the Accused approached him at STM’s carpark in June 2002 for a $30,000 loan to replace his (the Accused’s) old car. The Accused promised to repay Tan after selling his ST shares. Before asking for the loan, the Accused had spoken with Tan about a ship owner’s feedback.[16]

22 Tan was surprised at the Accused’s request, as he thought that the latter was rich. Nevertheless, Tan agreed to lend the money. During the meeting, the Accused did not offer to pay interest on the loan. Neither did he indicate whether the money was needed in cash or cheque, nor a specific date of repayment.[17]

23 About two to three weeks later, the Accused told Tan that he had found a suitable car and asked the latter to prepare the money.[18] Soon thereafter, Tan arranged to deliver the money to the Accused after the latter had returned from work. They eventually met at about 9 pm at the void deck of the Accused’s flats. There, Tan gave the Accused $30,000 cash (obtained from his home safe box). At the material time, Tan expected the Accused to return the loan at the end of the year, either with money from the sale of his ST shares or his bonus.[19]

24 December loan– The Accused however did not return the $30,000 loan by year end. Instead, he approached Tan at STM carpark in December for another loan, this time $20,000 to help pay his Warren condominium progress payment. The Accused did not specify whether the loan was to be in cash or cheque. He again promised Tan to return the money as soon as he sold his ST shares.[20]

25 Tan was surprised at the request, as the Accused had ust brought a car and was now asking for money to purchase a condominium. After considering the matter for about a week, Tan eventually accedde to the Accused's request. Tan lent the money thinking that the Accused would be selling his (Accused's) maisonette flat to finance the condominium purchase. Tan however did not clarify with the Accused on his assumption, or how the latter would be returning the loan.[21]

26 Sometime in the middle of December 2002, Tan took $20,000 cash from his home safe box and handed it to the Accused at a Chinese physician shop at Woodlands. The Accused was then seeking medical treatment at the shop. The Accused promised to return the money as soon as possible. There was again no mention of interest on the loan, or a definite time for the loan repayment. In fact, Tan did not have any idea when the Accused would return the loan.[22]

27 Previous inconsistent statements– During examination-in-chief, Tan repeatedly maintained that he gave the June and December loans purely out of friendship, with no other ulterior motive. He flatly denied that the loans were given to secure more ship repair piping jobs from STM.[23]

28 In view of Tan’s evidence, who was ostensibly a prosecution witness, I allowed Prosecution to cross-examine him under section 147(1) of the Evidence Act on three statements he gave to CPIB officer SSI Erik Soh on 9 and 30 January 2003: P3 to P5.[24] In these statements, Tan revealed that –

a. He decided to give the two loans to the Accused because they ‘were good friends, and also to maintain good working relationship, and hoping to get more works’ (handwritten insertions in P3 @ para 9 & 12).

b. He was hoping that by helping the Accused, the latter would help him back by inviting him to quote for ad hoc ship piping repair jobs (P4 @ para 18; P5 @ para 22).

29 Tan's explanations for the discrepancies to the Prosecution– These statements went to the heart of Tan’s motive for giving the two loans to the Accused and materially contradicted his evidence in court. The Prosecution appropriately confronted Tan with these material discrepancies.

30 Tan did not deny making the handwritten insertions in para...