Public Prosecutor v Yap Sze Kam

• Jurisdiction: Singapore
• Judge: Kan Shuk Weng
• Judgment Date: 24 March 2017
• Neutral Citation: [2017] SGDC 89
• Court: District Court (Singapore)
• Docket Number: DAC No. 931157 of 2016 & Ors
• Year: 2017
• Published date: 19 September 2017
• Hearing Date: 21 February 2017,01 March 2017
• Plaintiff Counsel: Norman Yew, Attorney-General's Chambers
• Defendant Counsel: Low Cheong Yeow, M/s Tito Isaac & Co LLP
• Citation: [2017] SGDC 89

District Judge Kan Shuk Weng:

The Accused, a 52-year-old male Singaporean, was charged with six offences under the Prevention of Corruption Act (Chapter 241, 1993 Revised Edition) (the “PCA”). On 21 February 2017, he and the co-accused, Ng Wei Ming (“Ng”) pleaded guilty to three of the charges and consented to the remaining three charges being taken into consideration for the purpose of sentencing.

The Accused and Ng were sentenced on 1 March 2017. Before imposing a sentence of 5 months’ imprisonment on the Accused, I made the following remarks:

Oral remarks

I would like to thank parties for their submissions. In the present case, both Ng Wei Ming (“Ng”) and Yap Sze Kam (“Yap”) faced six charges under the Prevention of Corruption Act (the “PCA”). Their charges mirror each other’s in that Ng was the recipient while Yap was the giver in all of these transactions, saved for one of the offences, which was a criminal conspiracy charge under the PCA. Against both Ng and Yap, the Prosecution proceeded on three charges each and applied for the remaining charges to be taken into consideration for the purpose of sentencing.

2. The Prosecution submitted a sentence of 3 months’ imprisonment and a fine of $500 against Ng, and a sentence of 6 – 8 months’ imprisonment against Yap. Counsel for Ng and Yap both submitted that the custodial threshold has not been crossed and that a fine would be appropriate as the present case is purely a private sector corruption. For Ng, Counsel further submitted that in the event that the court takes the view that the custodial threshold has been crossed, to impose a term of imprisonment of not more than one month. 3. The Prosecution conceded that this is not a case where the public service rationale is applicable. Instead, the submission is that this is a case which falls under category two of cases in which private sector corruption may occur, as identified in Mostofa Romel. This is because Ng was paid by Yap to forbear from discharging his duties properly. The Prosecution further submitted that the offences were systematic and organised, and took place over a period of 2 months. Counsel for Ng and Yap both argued strenuously that the present case is one which falls under the first category in Mostofa Romel. 4. In my opinion, the present case is one which falls under the second category referred to in Mostofa Romel. This is so for at least five of the six charges. For the offences in the 2nd to 6th charges, Ng was paid by Yap to do the following: (i) Endorse falsified work record cards which resulted in CPCA paying Yap’s company (“SKYE”) in excess of the work which was actually done (2 occasions); (ii) Engage in a conspiracy (with Yap) to persuade the manager of SEK to make payment to SKYE instead of CPCA (iii) Conceal the fact that CPCA was awarded a painting job by SEK; and (iv) Deceive the MD of CPCA into believing that one of the employees was terminated (when he had in fact resigned) thereby causing CPCA to pay damages to SKYE.

As for the 1st charge against both Ng and Yap, I take the view that it falls under the first category, on the face of the charge (which was also the position taken by the Prosecution). No other details relating to that charge were provided as that charge was taken into consideration for the purpose of sentencing.

5. The second category relates to cases involving active attempts to procure a breach of duty on the recipient’s part (see Menon CJ’s ex tempore statement in Thor Chi Tiong). Clearly, the actions of Ng, as reflected in the charges and the SOF, were breaches of his duty to CPCA. He was not acting in the interests of CPCA and had, in fact, actively participated in deceiving CPCA into making excess payments to SKYE. With respect to the charge involving SEK, Ng clearly deprived CPCA of the potential profit that it could have made in securing the painting job awarded to it by SEK. 6. For cases falling under the second category, Menon CJ has indicated in Mostofa Romel at [28] and Thor Chi Tiong (ex tempore statement) that such cases would frequently attract custodial sentences. This position is also noted in the Sentencing Practice in the Subordinate Courts which was referred to by Menon CJ at [23]: where private sector corruption involves a compromise of one’s duty or a serious betrayal of trust, the starting point is likely to be a custodial sentence.

Ng Wei Ming

7. Having decided that this is essentially a second category case, I next consider whether a custodial term is warranted. In respect of Ng, the Prosecution submitted that a global term of 3 months’ imprisonment and $500 fine (in relation to the 3rd charge) is appropriate. Mr Yew highlighted, inter alia, that the offences were planned, premeditated and took place over a period of 2 months, that Ng held a managerial position and that he could not be treated as a first offender in view of the multiple offences against him. 8. Counsel for Ng argued that a fine or short incarceration is sufficient as, inter alia, Ng was truly remorseful and the offence was one off, he assisted in police investigations, there was a short period of offending and no grave mischief was caused. Further, Ng was not a senior manager. 9. I agree with the Prosecution that Ng held a managerial position – this is apparent from [2] of the Joint SOF which Ng admitted to without qualification. Whether his designation was that of a Senior Manager, a Manager or a Site Supervisor is but mere nomenclature. In substance, he was given the authority to award jobs to vendors and was in charge of all CPCA’s matters at the plant. CPCA relied on his endorsements in the work records when making payments to SKYE. For all intent and purpose, his responsibilities at the plant were managerial in nature. 10. Counsel also argued that Yap’s “true gain” only amounted to about $13k, after deducting expenses and the bribes that he paid to Ng, and Ng’s gain was only $8,600. With respect, I do not think it lies in the defence mouth to submit that the court should take into consideration the expenses incurred by the offenders (which were mainly the bribes paid to Ng) and look at the nett gain of the offenders instead. This is tantamount to saying that a court should only consider that an offender has only benefited $500 from stealing a laptop of $1,500 on an airplane as he had spent $1,000 on the air ticket. In relation to Ng’s breach of duty towards CPCA, I am also unable to agree with Counsel that the “mischief caused was not great”. It is apparent that as a result of Ng’s breaches, CPCA had suffered monetary losses, which led to the MD of CPCA confronting Yap on the expenses incurred by CPCA which exceeded its earnings (see [3] of Joint SOF). Not only did Ng breach his duty to CPCA, he also used deception on CPCA. 11. I therefore am of the view that a custodial term is appropriate. In deciding on the period of incarceration, I take into account the mitigating factors raised by Counsel – that Ng had pleaded guilty and had co-operated with the authorities. I accord considerable weight to the fact that he had pleaded guilty, thereby saving courts time and which is also an indication of his remorse. However, I do not think much weight should be accorded to the fact that he purportedly co-operated with the authorities. Yap had recorded all the bribes paid to Ng in SKYE’s accounting books and there were also the incontrovertible documentary proof of the false entries which were endorsed by Ng. As for Counsel’s submission that the offence was one-off and committed out of desperation, I am unable to agree with that as well. While Ng may have been in need of money in November 2014 as the birth of his child was imminent, this does not explain why he continued taking bribes from Yap in December 2014 and January 2015. In fact, his greed was such that he even took the $500 which was meant for Lee, over and above the $1,500 that Yap was going to give him for concealing SEK’s award of the job to CPCA. 12. However, I agree with Counsel that two months could not be considered a long period of time. Therefore, taking into consideration the sentencing precedents submitted by the Prosecution and the fact that the period over which the offences were committed was not long, I impose the following sentences: (i) 2nd charge (DAC931169/2016) – 6 weeks’ imprisonment; (ii) 4th charge (DAC931171/2016) – 4 weeks’ imprisonment; and (iii) 6th charge (DAC931173/2016) – 2 weeks’ imprisonment,

with the sentences in the 2nd and 4th charges to run consecutively. In addition, Ng is to pay a penalty of $4,100, in default, 2 weeks’ imprisonment.

With respect to the fine of $500 sought by the Prosecution, this is in relation to a charge which was taken into consideration for the purpose of sentencing. Since I have already factored in the charges which were taken into consideration in calibrating the custodial sentence against Ng (the fact that one of the charges relate to a first category offence and that the 3rd charge is related to the 6th charge), I will not be imposing an additional fine. The total sentence is therefore 10 weeks’ imprisonment and a penalty of $4,100, in default 2 weeks’ imprisonment.

Yap Sze Kam

13. As for Yap, Counsel submitted that a fine would suffice and cited various precedents. In my opinion, those cases can be distinguished from the present case as those were clearly not cases under the second category. It is also not apparent from the Defence Bundle of Authorities that the principal had suffered losses as a result of the corrupt transactions and that the offenders in those cases had previous convictions for similar offences. 14. I have imposed a total sentence of 10 weeks’ imprisonment on Ng. The starting point for Yap is therefore a total sentence of the same, bearing in mind the...