District Judge Low Wee Ping:
The accused was Teo Thian Seng. He was 59 years old. He was married. His wife was a retired professional. He had 3 sons, aged 17, 28, and 29, respectively. In 1976, the accused graduated from the University of Singapore, with a Bachelor of Science in Building and Estate Management.
In 1996, the accused “jump started” a company called Boustead Projects Pte Ltd (BPPL). BPPL was “an industrial property subsidiary of the renowned diversified Boustead Group founded in 1828”. The accused was a “40% shareholder, with 55% and 5% owned by Boustead Group and Ngo Wu Ping”. He was the managing director, until he was “unceremoniously ejected from the company following the aftermath of CPIB investigations in mid 2006”.
The accused was represented. His defence counsel was Mr. Spencer Gwee. The prosecutor was Mr. Alan Loh.
2 charges proceeded with
The prosecution preferred 5 charges (C1, C2, C3, C4 and C5) against the accused, and proceeded with 2 charges. The 2 charges (C2 and C4) were as follows:- DAC 53756/2009 (C2) “You … are charged that you on or about 26th day of September 2005, at No. 63 Ubi Avenue 1, Singapore, being an officer, to wit, the Managing Director of Boustead Projects Pte Ltd (“BBPL”), together with one Sim Beng Yeow, a Construction Manager of BBPL, in furtherance of the common intention of you both, willfully and with intent to defraud, did falsify a paper belonging to BBPL, your employer, to wit, variation order No. 02 dated 26 September 2005 for Agreement No. 0658/05, for a purported “Site Safety Infringement” and “Failure to maintain site cleanliness”, which entitled BBPL to deduct a sum of $50,000 from the total sum payable by BBPL to Qinda Engineering Pte Ltd, which you knew to be false; and you have thereby committed an offence punishable under Section 477A read with Section 34 of the Penal Code, Chapter 224.” and DAC 53758/2009 (C4) “You … are charged that you on or about 19th day of September 2005, at No. 63 Ubi Avenue 1, Singapore, being an officer, to wit, the Managing Director of Boustead Projects Pte Ltd (“BBPL”), together with one Sim Beng Yeow, a Construction Manager of BBPL, in furtherance of the common intention of you both, willfully and with intent to defraud, did falsify a paper belonging to BBPL, your employer, to wit, variation order No. 04 dated 19 September 2005 for Agreement No. 0660/05, for a purported “Site Safety Infringement” and “Failure to maintain site cleanliness”, which entitled BBPL to deduct a sum of $30,000 from the total sum payable by BBPL to Lifa Engineering Pte Ltd, which you knew to be false; and you have thereby committed an offence punishable under Section 477A read with Section 34 of the Penal Code, Chapter 224.”
Section 477A Penal Code (Cap 224)
Section 477A of the Penal Code (Cap 224) was amended on 1 February 2008. Therefore, the pre-2008 version which was applicable to the accused, stated as follows:- “Falsification of accounts 477A. Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully and with intent to defraud destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully and with intent to defraud makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, paper, writing, valuable security or account, shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both. Explanation.—It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded, or specifying any particular sum of money intended to be the subject of the fraud or any particular day on which the offence was committed.”
The accused pleaded guilty to the above 2 proceeded charges.
Statement of facts
The prosecution tendered the following statement of facts (PS1):- “1The accused person is Teo Thian Seng, male/59 years old, NRIC No. S0155952D, D.O.B: 5 April 1951. At the material time, he was the Managing Director of Boustead Projects Pte Ltd (“Boustead Projects”), and also owned 40% of its shares. Boustead Projects’ business was in the construction of design and build industrial buildings and the responsibilities of the accused included the day to day running of the company, bringing in new business, and he was the company’s sole signatory. The co-accused, Sim Beng Yeow (“Sim”), was the construction manager of Boustead Projects, whose duties included overseeing the tendering process for all construction projects submitted by, or to Boustead Projects and appointing subcontractors, and he reported directly to the accused. The other shareholders of Boustead Projects were one Ngo Oo Pon @ Ngo Wu Ping (5%), Boustead Salcon Pte Ltd (24.9%) and Boustead Singapore Limited (“Boustead Limited”) (30.1%), which is a public-listed company. Background facts Investigations revealed that Boustead Projects was charging its subcontractors a fee for allocating a portion of its Man-Year Entitlement (“MYE”) to its subcontractors. The MYE allocation system is a work permit control system which regulates the employment of foreign labour by local construction companies. Boustead Projects, as the main contractor for local construction projects, was granted a certain number of MYE by the Ministry of Manpower (“MOM”) based on the value of Boustead Projects’ on-going construction projects which entitled it and/or its subcontractor(s) to apply for work permits for an equivalent number of foreign workers to work on specified projects for which the said MYE was allocated. MOM did not charge a fee in respect of each MYE allocated, but only charged a levy on each work permit issued. Subcontractors could not obtain MYE directly from MOM as MYE is only allocated to main contractors like Boustead Projects. Subcontractors who were awarded subcontracts by the main contractor would be allocated MYE by the main contractors from their own allocation for the year, with which these subcontractors would then apply to MOM to either obtain fresh or extensions of work permits for an equivalent number of foreign workers by submitting (a) a Prior Approval Application (“Form 1A”) to MOM specifying the project in respect of which the application was made, together with a copy of the relevant award of subcontract; (b) Form 1B filled in by the subcontractor declaring that it has been awarded a subcontract by the main contractor, and (c) Form 1C, which had to be filled in and signed by the main contractor confirming that the applicant is a bona fide subcontractor for the specified project. For Boustead Projects, Sim was responsible for filling in Form 1C and the accused, as Managing Director, was the only person authorized by Boustead Projects to sign Form 1C and allocate MYE to their subcontractors. Sometime in 2001 or 2002, the accused and Sim discussed the issue of MYE allocation to Boustead Projects’ subcontractors and the accused decided to charge Boustead Projects’ subcontractors $1,000 for each MYE allocated to them, and this “MYE charge” would be deducted from the price of the contracts Boustead Projects had with its subcontractors. These subcontractors would then have to pay $1,000 to Boustead Projects per foreign worker employed under a valid work permit, pursuant to the MYE allocated by Boustead Projects. For accounting purposes, this charge imposed on subcontractors was disguised as a variation order (“VO”) in a particular construction project and the amount was to be deducted from the original construction project price payable by Boustead Projects to the subcontractor. As the Construction Manager, Sim was responsible for preparing the false variation orders, which were then signed by the accused as the Managing Director and Boustead Projects’ sole authorised signatory. The accused instructed Sim to describe the said false VOs in any manner other than as a charge or fee for the sale of MYE. Facts relating to DAC 53756/2009 Sometime in early 2005, one Ng Ah Chong (“Ng”) who was a director of Qinda Engineering Pte Ltd (“Qinda”) informed Sim that he wished to employ 50 foreign workers and requested to be allocated 50 MYE from Boustead Projects’ allocation of MYE. Qinda was one of Boustead Projects’ subcontractors. Sim agreed to Ng’s request and informed him that $1,000 would be imposed for each MYE that he was allocated. Ng agreed that the total amount payable for the MYE, the sum of $50,000 ($1,000 X 50 MYE) would be deducted from Qinda’s subcontract price accordingly. On or about the 26th day of September 2005, at No.63 Ubi Avenue 1 Singapore which is the location of Boustead Projects’ office, Sim prepared “Variation Order No.02” dated 26 September...