Public Prosecutor v Teo Kye Hwee Tony

• Jurisdiction: Singapore
• Judge: Adam Nakhoda
• Judgment Date: 27 August 2019
• Neutral Citation: [2019] SGMC 50
• Court: Magistrates' Court (Singapore)
• Docket Number: MAC 907862, 907865, 907873 & 907876 of 2018
• Published date: 17 July 2020
• Year: 2019
• Hearing Date: 27 February 2019,15 February 2019,15 January 2019
• Plaintiff Counsel: PO Shanti Priya
• Defendant Counsel: Mr Leonard Loh Wei Jie
• Citation: [2019] SGMC 50

District Judge Adam Nakhoda:

Mr Goh Boon Hong (Goh) and Mr Teo Kye Hwee, Tony (Teo) pleaded guilty to two charges respectively of making a statement which was false in a material particular to the Controller of Work Passes when they falsely declared the monthly salary to be paid to one Mr Arulsamy Andrewstalin (Arulsamy) and Mr Savari Muthu Titus Arun Prasadh (Savari) in connection with an application for an S-Pass for Arulsamy and Savari. I sentenced Goh and Teo to pay a fine of $15,000 per charge. Both Goh and Teo have paid their fines. The Prosecution being dissatisfied with the sentences imposed on both Goh and Teo and has appealed.

As the cases against Goh and Teo are very closely connected, this Grounds of Decision will deal with my reasons for imposing the sentences against Goh and Teo respectively. I would also note that Goh and Teo were sentenced before the decision in Chiew Kok Chai v Public Prosecutor¹ was made. As such, this decision was made without the benefit of Justice Aedit Abdullah’s grounds of decision in Chiew Kok Chai.

PROCEEDED CHARGES

Charges against Goh:

MAC 907862 of 2018

You, are charged that you, sometime between January to February 2014, in Singapore, did abet Te Deum Engineering Pte Ltd (UEN: 198902890N) (“the company”) by engaging in a conspiracy with Pandiselve d/o Parianani Rajo (NRIC No:XXX) (“Pandiselve”), an employment agent engaged by the company, to do a certain thing, namely, for the company to make a statement which was false in a material particular to the Controller of Work Passes in a Declaration Form (“the form”) in connection with an application for an S-pass for a foreign employee, Arulsamy Andrewsstalin (FIN:XXX), and in pursuance of that conspiracy and in order for the doing of that thing, an act took place; to wit, you liaised with Pandiselve regarding the said foreign employee’s S-pass application and arranged for the company to declare on the form which was submitted to the Work Pass Division, Ministry of Manpower on 6 February 2014, that the said foreign employee would be paid a fixed monthly salary of $2,400 by the company, a statement which you knew to be false in a material particular, and you have thereby committed an offence under section 22(1)(d) read with section 23(1) of the Employment of Foreign Manpower Act (Chapter 91A, 2009 Rev Ed), punishable under section 22(1)(ii) of the same Act.

MAC 907865 of 2018

You, are charged that you, sometime between January to February 2014, in Singapore, did abet Te Deum Engineering Pte Ltd (UEN: 198902890N) (“the company”) by engaging in a conspiracy with Pandiselve d/o Parianani Rajo (NRIC No: XXX) (“Pandiselve”), an employment agent engaged by the company, to do a certain thing, namely, for the company to make a statement which was false in a material particular to the Controller of Work Passes in a Declaration Form (“the form”) in connection with an application for an S-pass for a foreign employee, Savari Muthu Titus Arun Prasadh (FIN:XXX), and in pursuance of that conspiracy and in order for the doing of that thing, an act took place; to wit, you liaised with Pandiselve regarding the said foreign employee’s S-pass application and arranged for the company to declare on the form which was submitted to the Work Pass Division, Ministry of Manpower on 6 February 2014, that the said foreign employee would be paid a fixed monthly salary of $2,400 by the company, a statement which you knew to be false in a material particular, and you have thereby committed an offence under section 22(1)(d) read with section 23(1) of the Employment of Foreign Manpower Act (Chapter 91A, 2009 Rev Ed), punishable under section 22(1)(ii) of the same Act.

Charges against Teo:

MAC 907873 of 2018

You, are charged that, on 6 February 2014, one Te Deum Engineering Pte Ltd (UEN: 198902890N), a body corporate of which you were the director, in connection with an S-pass application for one foreign employee, Arulsamy Andrewsstalin (FIN:XXX), to be employed by the company as a Warehouse Supervisor, did make a statement which was false in a material particular to the Controller of Work Passes, in a “Declaration Form” submitted to the Work Pass Division, Ministry of Manpower, which offence was committed with your consent; to wit, you in your capacity as the director of the company made the decision for and on behalf of the company, to declare that the fixed monthly salary of the said foreign employee would be $ 2,400, when you knew this to be false, and you have thereby committed an offence under section 22(1)(d) read with section 20(1)(a) of the Employment of Foreign Manpower Act (Chapter 91A), punishable under section 22(1)(ii) of the same Act.

MAC 907976 of 2018

You, are charged that, on 6 February 2014, one Te Deum Engineering Pte Ltd (UEN: 198902890N), a body corporate of which you were the director, in connection with an S-pass application for one foreign employee, Savari Muthu Titus Arun Prasadh (FIN:XXX), to be employed by the company as a Warehouse Supervisor, did make a statement which was false in a material particular to the Controller of Work Passes, in a “Declaration Form” submitted to the Work Pass Division, Ministry of Manpower, which offence was committed with your consent; to wit, you in your capacity as the director of the company made the decision for and on behalf of the company, to declare that the fixed monthly salary of the said foreign employee would be $ 2,400, when you knew this to be false, and you have thereby committed an offence under section 22(1)(d) read with section 20(1)(a) of the Employment of Foreign Manpower Act (Chapter 91A), punishable under section 22(1)(ii) of the same Act.

THE FACTS

In January 2014, an employment agent, Pandiselve d/o Parianani Rajo (Pandiselve) was engaged by Te Deum Engineering Pte Ltd (Te Deum) to source for workers. Goh informed that Te Deum did not have sufficient quota for work permit holders and that the company could not afford to employ S-Pass holders. Pandiselve then recommended Arulsamy and Savari to Goh and suggested that the company apply for S-Passes for the two workers and subsequently finalise the salaries with them. Goh informed the Teo of the plan to apply for S-Passes for Arulsamy and Savari with a declared salary of $2,400 but that they would only be paid $1,300. Teo agreed to the plan and Goh directed Pandiselve to apply for S-Passes.

When they arrived in Singapore in February 2914, Goh then informed Arulsamy and Savari that the company would apply for S-Passes for them but that their monthly salary would be $1,350 and that the excess amount that they were paid had to be returned to the company. Arulsamy and Savari agreed with the arrangement.

On 6th February, Teo, a director of Te Deum and in his capacity as an officer of Te Deum, consented to the company making two statements that were false in a material particular to the Controller of Work Passes in the applications for S-Passes made on behalf of Arulsamy and Savari. The company declared that the fixed monthly salary to be paid to both Arulsamy and Savari would be $2,400 when Teo knew that the actual salary to be paid would be lower. Teo authorised Te Deum’s sales manager, Jessica Chia Siew Yean (Jessica) to sign the forms declaring that the fixed monthly salary would be $2,400.

As a result of the false statements, S-Passes were issued to Arulsamy and Savari. It is a key criterion for the granting of an S-Pass that the applicants meet the minimum salary requirement and, as such, the declared salary was a material consideration used by the Work Pass Division (WPD) of MOM in determining whether to grant a work pass.

Over a period from February 2014 to December 2015, Arulsamy and Savari were paid the salary declared as part of the S-Pass application but, in conforming with the arrangement they had with Goh, would repay $1,050 per month to the Te Deum. Te Deum had since made full restitution of the underpayment to Arulsamy and Savari

CHARGE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF SENTENCING

Goh and Teo admitted to and consented to having another three charges respectively taken into consideration for the purposes of sentencing. These were charges for offences under section 22(1)(d) EFMA. Two charges related to further false statements in connection with Arulsamy and one charge related to a further false statement in connection with Savari.

ANTECEDENTS

Neither Goh nor Teo had any previous convictions.

PROSECUTION’S SUBMISSION

The Prosecuting Officer, Ms Shanti Priya (Ms Priya), sought a sentence of six weeks’ imprisonment per charge for both Goh and Teo and submitted that I should run both sentences consecutively for a global sentence of 12 weeks’ imprisonment.

Ms Priya submitted that in past cases involving offences under section 22(1)(d) EFMA of making false statements, of the type in this case, the State Courts had imposed fines between $7,500 and $9,000. Ms Priya submitted that the practice of imposing fines was inadequate in view of Parliament’s clearly stated intention that a firm stance should be taken against employers who commit offences under the EFMA. She submitted that the custodial threshold for such offences would be crossed if the application for the work pass “would not have been granted but for the falsehood”.

Ms Priya referred to the case of Abu Sayeed Chowdhury v Public Prosecutor² to support her submission that a custodial sentence should be the norm for false declaration cases under section 22(1)(d) EFMA as the offences were similar in nature to offences under section 57(1)(k) of the Immigration Act. She pointed out that in Chowdhury, Chief Justice Yong Pung How had found that in determining the culpability of an accused the Court should have regard to: (i) the materiality of the false representation; (ii) the nature and extent of the deception; (iii) the consequences of the deception; and (iv) the...