Public Prosecutor v Tay Chiu Song and others

• Jurisdiction: Singapore
• Judge: Sharmila Sripathy-Shanaz
• Judgment Date: 26 September 2023
• Neutral Citation: [2023] SGDC 213
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 922486 of 2019 and Others
• Hearing Date: 11 October 2021,12 October 2021,25 November 2021,21 February 2022,07 April 2022,14 July 2022,03 October 2022,11 November 2022,13 December 2022,24 March 2023,24 May 2023,01 August 2023,23 August 2023
• Citation: [2023] SGDC 213
• Year: 2023
• Plaintiff Counsel: Theong Li Han and Kwang Jia Min (Attorney-General's Chambers)
• Defendant Counsel: Peter Ong & Marcus Lim (Peter Ong Law Corporation),Amarjit Singh s/o Hari Singh (Amarjit Sidhu Law Corporation),Darshan Singh Purain and Vanisha Ishwar Chandiramani (Darshan & Teo LLP)
• Subject Matter: Criminal Law,Statutory Offences,Prevention of Corruption Act,Criminal Procedure and Sentencing,Sentencing,Principles,Penalty,Default Sentence
• Published date: 03 October 2023

District Judge Sharmila Sripathy-Shanaz: Introduction

This case involves accused persons who have pleaded guilty to corruption charges disclosing $101,600 paid in gratification. Mr Tay Chiu Song (“Tay”) has been convicted of a charge of corruptly obtaining gratification, an offence under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”). Mr Tan Hai Leng (“Tan”) has been convicted of a charge of corruptly giving gratification under s 6(b) of the PCA, whilst Ms Tan Hui Hong (“Hui Hong”) has been convicted of a charge of abetting the corrupt giving of gratification to Tay, an offence under s 6(b) read with s 29(a) of the PCA. Tay, Tan and Hui Hong each have two similar charges taken into consideration for the purpose of sentencing. In this judgment, when dealing with Tay, Tan and Hui Hong collectively, I shall refer to them as the accused persons.

Tay and Tan’s charges are mirrors of each other. In sum, the charges relate to payments from Tan to Tay while the latter was employed by Wartsila Pte Ltd (“Wartsila”) and pertain to Tay and Tan corruptly agreeing to accept or give gratification as an inducement for Tay to award future Wartsila orders to NNC International Pte Ltd (“NNC”). These illicit payments were made between 17 June 2015 and 12 January 2016. The charges against Hui Hong relate to her role as an abettor in the corrupt transactions.

The proceeded charges to which the accused persons have pleaded guilty to, relate to a payment of $59,600.

The Charges

For ease of reference, the three proceeded charges are reproduced in full below:

DAC-922486-2019

You, Tay Chiu Song … are charged that you, on 17 June 2015, at 80 Toh Guan Road East, Singapore, while being an agent, to wit, the Sales Manager in the employ of [Wartsila], did corruptly obtain a gratification of S$59,600/- in cash, through one Tan Hui Hong, from one Tan Hai Leng, the Director of NNC International Pte Ltd (“NNC”), as an inducement for doing an act in relation to your principal’s affairs, to wit, awarding future Wartsila orders to NNC, and you have thereby committed an offence punishable under Section 6(a) of the [PCA].

DAC-922536-2019

You, Tan Hai Leng … are charged that you, on 17 June 2015, at 80 Toh Guan Road East, Singapore, while being the Director of [NNC] did corruptly give to an agent, to wit, one Tay Chiu Song, the Sales Manager in the employ of [Wartsila], gratification of S$59,600/- in cash, through one Tan Hui Hong, as an inducement for doing an act in relation to Tay’s principal’s affairs, to wit, awarding future Wartsila orders to NNC, and you have thereby committed an offence punishable under Section 6(b) of the [PCA].

DAC-922497-2019

You, Tan Hui Hong … are charged that you, on 17 June 2015, at 80 Toh Guan Road East, Singapore, did abet by intentionally aiding one Tan Hai Leng (“Tan””), the Director of [NNC], to corruptly give gratification to an agent, one Tay Chiu Song (“Tay”), the Sales Manager in the employ of [Wartsila], to wit, by helping Tan pass cash amounting to S$59,600/- to Tay, as an inducement for doing an act in relation to Tay’s principal’s affairs, to wit, awarding Wartsila’s future orders to NNC, and you have thereby committed an offence punishable under Section 6(b) read with Section 29(a) of the [PCA].

I begin by summarizing the salient facts which are relevant to determining the appropriate individual sentences.

Facts

The following facts are admitted.

Overview¹

At all relevant times, Tay was the Sales General Manager of the Seals and Bearings Department of Wartsila, a multinational corporation in the business of manufacturing equipment and products and providing services to the marine and energy industry. Tan was the Director of NNC, a Singapore-based company in the business of supplying marine parts, in particular spacers as well as navigation and communication equipment.

Hui Hong is Tan’s sister. She was in a romantic relationship with Tay at the material time.

Background Tay’s role as Sales General Manager²

As the Sales and General Manager of Wartsila’s Seals and Bearings Department, Tay was in charge of managing the sale of seals and bearings to Wartsila’s clients. He was required to make sure that sales targets were met and that the products delivered to Wartsila’s clients were up to the required quality standards.

Seals and bearings could be internally sourced from Wartsila’s subsidiaries. However, if there was no stock or stocks could not be delivered within the required time frame, Tay had the authority to source for seals and bearings from companies listed in Wartsila’s approved vendors list. As the Sales General Manager, Tay was required to ensure that the products acquired from the vendors, met the required quality standards and were priced at market prices.

Wartsila’s code of conduct³

Tay knew that pursuant to Wartsila’s Code of Conduct, he was: to avoid situations where his personal interests may conflict with those of Wartsila; and not supposed to solicit or accept bribes or kickbacks of any kind.

Neither Tan nor Hui Hong knew of the above.

Wartsila’s procurement policy⁴

When a purchase had to be made, Wartsila’s centralised procurement policy required the requestor to raise a purchase requisition and select the vendor(s) that they wanted to raise the purchase requisition to. Wartsila’s Purchasing Department would then check with the various vendors to ascertain if Wartsila’s requirements on quality, pricing and delivery were met. If a vendor met the requirements, the Purchasing Department would raise a purchase order to the vendor. Upon delivery of the product, the vendor would produce a delivery order. After Wartsila’s Logistics Department had checked the quality and quantity of the products received, and signed the delivery order, the system would be updated and Wartsila would pay the vendor.

Staff of Wartsila’s Sales and Bearings Department, including Tay, did not have to adhere to this centralised procurement policy. Tay could raise purchase requisitions directly with a vendor and issue purchase orders without going through the Purchasing Department. The vendor would then deliver the goods to the Logistics Department for a quality and quantity check. The logistics personnel would thereafter sign the vendor’s delivery order and the system would be updated for Wartsila to pay the vendor.

Tay was given the leeway to run the Seals and Bearings Department without having to follow the centralised procurement policy as long as the vendors met Wartsila’s procurement requirements on quality, pricing and delivery, and were approved by the Quality Department.

The relationship between Tay, Tan and Hui Hong⁵

As mentioned above (supra at [8]), Tan and Hui Hong are siblings. In 2003, Tay and Hui Hong entered into a romantic relationship. In 2006, Hui Hong introduced Tan to Tay.

Tay recommends NNC to Wartsila’s Quality Department⁶

In 2014, Hui Hong informed Tay that NNC was not doing well financially. Hui Hong asked Tay to recommend NNC to Wartsila’s Quality Department, for consideration as an approved vendor. As Tay was in a romantic relationship with Hui Hong at the material time, Tay agreed.

Tay knew that NNC did not have the capability to fulfil Wartsila’s orders itself, and that it would have to subcontract the orders to subcontractors, including New Transview Engineering & Trading Pte Ltd (“NTE”), which shared the same office premises with NNC.

Tay did not declare his relationship with Hui Hong, nor that Tan was Hui Hong’s brother, when making the recommendation to Wartsila. Tay also did not declare to Wartsila that NNC would be subcontracting Wartsila’s orders to subcontractors.

NNC becomes an approved vendor⁷

NNC subsequently became an approved vendor of Wartsila. From October 2014, Tay awarded general engineering works involving spacers, liners and fabrication works from Wartsila to NNC. Sometimes, Tay would tell Tan how much to quote Wartsila. As NNC subcontracted all of Wartsila’s orders, Tay knew that Wartsila effectively paid a marked-up price to NNC for orders he awarded to NNC.

Payment disputes with Wartsila’s clients⁸

From 2012 to 2015, Wartsila had disputes with some of its clients. NYK Ship Management Pte Ltd (“NYK”), MOL Ship Management (Singapore) Pte Ltd (“MOL”) and IMSE NV (“IMSE”) refused to pay for the following outstanding invoices (“the Disputed Invoices”) billed by Wartsila: invoice issued to NYK for the payment of $6,294.44 dated 17 June 2013; invoice issued to MOL for the payment of $17,607.02 dated 8 August 2012; invoice issued to MOL for the payment of $11,985.56 dated 23 May 2013; invoice issued to MOL for the payment of $24,262.05 dated 20 August 2013; invoice issued to MOL for the payment of $4,543.50 dated 14 August 2012; and invoice issued to IMSE for the payment of $4,468.43 dated 20 November 2015.

The Disputed Invoices amounted to a total of $69,161.

Tay’s payment of the disputed invoices⁹

At the time, Tay was the manager in-charge of Wartsila’s business transactions with the aforesaid clients. As he was responsible for Wartsila’s receivables management portfolio and did not want his job performance to be affected, Tay did not inform Wartsila’s management of the disputes. Instead, he decided to pay-off the Disputed Invoices himself without informing Wartsila that the payments came from him and not the clients.

From April 2015 to May 2015, Tay paid-off the invoices at [21(a)] to [21(d)] above, totalling $60,149.07, using his own funds. As Tay did not declare the source of the payments, Wartsila was unaware that the payments for these outstanding invoices did not come from its clients.

Tay asks Tan for a Favour¹⁰

Sometime in 2015, Tay shared with Tan, through Hui Hong, that he was facing challenges with the Disputed Invoices which needed to be settled. Tay thus asked Tan for a favour to give him money to resolve...