Public Prosecutor v Yeo Tian Ming, Benedict

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 23 December 2022
• Neutral Citation: [2022] SGDC 299
• Court: District Court (Singapore)
• Docket Number: District Arrest Case 919430 of 2020, Magistrate’s Appeal No. 9249 of 2022-01
• Published date: 04 January 2023
• Year: 2022
• Hearing Date: 21 November 2022,30 November 2022,19 September 2022,29 August 2022
• Plaintiff Counsel: Amos Tan and Joel Lim
• Defendant Counsel: Sankar s/o Kailasa Thevar Saminathan and Ms Tessa Low Wen Xin (Sterling Law Corporation)
• Subject Matter: Criminal Procedure and Sentencing,Employment Agencies Act (Cap 92, 2012 Rev Ed),Director convicted under s 6(1) read with s 28A(1)(a) and s 6(4)(a) of the Employment Agencies Act (Cap 92, 2012 Rev Ed) for having consented to company provide industrial attachment emplacement services without license,Sentencing factors,Whether director should be sentenced to imprisonment when company's activities do not involve deception or exploitation, and parties involved in the emplacement services have benefitted from such services,Sentencing,Fines,Disgorgement of profits through fine,Company incurs expenses in providing emplacement services,Whether these are "necessary expenses" and should thus be taken into account when calibrating the fine that may be imposed,Whether director (who is a major company shareholder) is proved to have received illicit profits simply because his company has profited from the offence,Burden of proving director's illicit profits,Whether director's 14-year-old convictions for abetment of illegal employment under s 5(1) read with s 23(1) of the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) are relevant to sentencing
• Citation: [2022] SGDC 299

District Judge Kow Keng Siong: Introduction

Under s 6(1) read with s 28A(1)(a) the Employment Agencies Act (Cap 92, 2012 Rev Ed) (“EAA”), a director is guilty of an offence if he has consented to his company carrying on an “employment agency” without the requisite license. The Act defines an employment agency as an agency carried on “for or in connection with the employment of persons in any capacity”: s 2 of the EAA. On conviction, the director can be punished with a fine (up to $80,000), or to imprisonment (up to two years), or to both: s 6(4)(a) of the EAA.

Should a director be sentenced to imprisonment when his company did not engage in any deception or exploitative conduct when carrying on an unlicensed employment agency? Should the director be imprisoned when the unlicensed employment agency activities have benefitted private education institutions (“PEIs”), their foreign students, and Singapore firms? In determining the director’s sentence, is it correct to assume that just because he is also a 95%-shareholder in the company, he must have received 95% of the company’s profits from the unlicensed employment agency activities? These are some of the key issues raised in the present case.

Benedict Yeo Tian Ming (“Yeo”) is a director of Edupal Associates Pte Ltd (“Edupal”). Between April 2017 and July 2019 (“Material Period”), Edupal (a) had assisted PEIs to place their foreign students on industrial attachments with Singapore firms, and (b) had assisted these firms to apply for training work passes (“TWPs”) as well as to provide aftercare services for the students (“emplacement services”). As a result of providing these services, Yeo and Edupal were charged as follows:

Charge against Yeo

You, […] are charged that you, [during the Material Period], as a director of [Edupal], had consented to [Edupal] carrying on an employment agency in Singapore when [Edupal] was not the holder of a license issued by the Commissioner of Employment Agencies authorising [Edupal] to carry on such an agency, which offence was committed with your consent, and you have thereby committed an offence under Section 6(1) read with Section 28A(1)(a) of the [EAA] and punishable under Section 6(4)(a) of the [EAA].

[text in square brackets added]

Charge against Edupal

You, […] are charged that you, [during the Material Period], in Singapore, did carry on an employment agency, when you were not the holder of a license issued by the Commissioner for Employment Agencies authorising you to carry on such an agency and you have thereby committed an offence under Section 6(1) of the [EAA], punishable under Section 6(4)(a) of the [EAA].

[text in square brackets added]

Yeo and Edupal claimed trial to their charges. Their Counsel submitted that no offence was disclosed because the emplacement services were outside scope of work performed by an “employment agency”. At the end of the trial,¹ I found that the charges were made out and convicted them accordingly.

Issue for determination

After the conviction, the Prosecution and Counsel submitted on the appropriate sentences to impose on Yeo and Edupal. These submissions, as well as the sentences that I had imposed, are as follows:

	Prosecution	Defence2	Court
Edupal	$80,000	$80,000	$80,000
Yeo	3 weeks AND $30,000	$60,000	$80,000

Dissatisfied with Yeo’s sentence, the Prosecution filed a notice of appeal. In these grounds of decision, I will explain why I had imposed only a fine on Yeo – instead of a fine and custodial sentence as submitted by the Prosecution.

Undisputed facts

Before providing my reasons, it is useful to first set out the facts. As stated earlier, the charges arose from the provision of “emplacement services” by Edupal. The company was able to find a market for such services because PEIs needed to place their students on industrial attachments with Singapore firms. Altogether, 175 foreign students from 13 PEIs were emplaced with seven Singapore firms on TWPs. These students were employed and remunerated by the firms at all material times.³ The details of Edupal’s emplacement services, which have been set out in an Agreed Statement of Facts (“ASOF”), are as follows: 17. During the Material Period, Edupal, with the consent of Yeo, conducted activities for and in connection with the employment of the 175 foreign students from the 13 PEIs as TWP holders with the Firms. These activities included: a. informing the PEIs that Yeo and Edupal could arrange for foreign students to be employed as TWP holders with various Firms; b. calling the Firms to ask if the Firms wanted to employ TWP holders; c. arranging for interviews after the foreign students were shortlisted by the Firms […] Yeo also provided the biodata of the students to the Firms; d. guiding the Firms on the process of applying for TWPs; and e. providing the Firms with the documents required for the application, i.e., copies of the student’s passport and student pass, the PEI’s training program as well as confirmation letter from the PEIs, which Yeo and Edupal had obtained from the PEIs. 18. […] 19. Once the application for a TWP was approved by MOM and an In-Principle Approval (“IPA”) issued, Edupal would then forward the IPAs to the PEIs and inform the PEIs to cancel the foreign students’ student passes. Edupal arranged accommodation for the foreign students, and informed the foreign students to register their addresses with MOM. Additionally, Edupal brought the foreign students to MOM for thumb-printing to complete the TWP application. Further, Edupal purchased air tickets for the students to return to their home countries after completion of their 6-months attachment with the Firms. During the Material Period, the Firms employed and paid the TWP holders for their services.

During the Material Period, Edupal was not a licensed employment agency. It is the policy of the Ministry of Manpower (“MOM”) that only employers are allowed to make TWP applications. Employment agencies – even if they are licensed – are not allowed to make such applications.

Prosecution’s submissions for custodial sentence

Having set out the background facts, I will now summarise the Prosecution’s reasons for seeking a sentence of three weeks’ imprisonment and $30,000-fine against Yeo. They are as follows: Edupal had received payments totalling $202,230 from its offence. Ninety-five percent of these payments (i.e., $192,118.5) would have gone to Yeo since he owned 95% of Edupal. Even if the maximum fine of $80,000 is imposed on both Yeo and Edupal, such fines ($160,000) would not be sufficiently deterrent as they would have failed to fully disgorge their illicit profits.⁴ Yeo’s offence is serious. It had (i) undermined the regulatory framework in the EAA, (ii) “[taken] advantage of licensed and law-abiding [employment agencies]”, and (iii) caused financial losses to the firms as they should not have paid for the emplacement services.⁵ Yeo’s offence was also committed over more than two years and on a significant scale.⁶ Finally, Yeo had similar antecedents. Between June 2006 and June 2007, he had abetted the employment of foreign students at various restaurants without a work pass. As a result, he was charged with 27 counts under s 5(1) read with s 23(1) of the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) (“EFWA”). In 2008, he pleaded guilty to 14 of these charges and consented to the remaining charges to be taken into consideration for the purpose of sentencing. Yeo was sentenced to a total fine of $91,200.⁷

My decision

I will now explain why I had rejected the Prosecution’s submission to sentence Yeo to imprisonment. I will first set out my views on (a) the mischief sought to be addressed by s 6(1) of the EAA and (b) the sentencing factors for the offence. Thereafter, I will show why the factors raised by the Prosecution do not justify sentencing Yeo to imprisonment.

Mischief to be addressed

This is Yeo’s first contravention of s 6(1) of the EAA. As such, he is liable to a fine not exceeding $80,000 or to imprisonment for a term not exceeding two years or both: s 6(4) of the EAA.

Prior to 2011, the prescribed punishment for contravening s 6(1) is only a fine of up to $5,000. In 2011, the prescribed punishment was enhanced to a maximum fine of $80,000, or imprisonment up to two years, or both. During the second reading of the Employment Agencies (Amendment) Bill, Mr Lee Yi Shyan, Minister of State for Manpower, provided the following explanation for the amendment (Parliamentary Debates, Official Report (11 January 2011, Vol 87, column 2289 to 2290) (“Second Reading Speech”):⁸

Sir, the Government takes unlicensed EA activities seriously. They undermine the regulatory framework by competing with licensed law-abiding EAs. They also tend to exploit the vulnerable workers from developing countries by charging them exorbitant fees and may not give them the promised jobs in return.

The current penalties pale in comparison to the potential profits from illegal or errant EA activities. The existing maximum penalty for first-time offenders under the Act is $5,000. But foreign workers, as you know, are willing to pay agency fees of between $3,000 and $10,000 in order to land a job in Singapore. … Moreover, licensed EAs would have to furnish a security deposit of up to $60,000 and the same requirement is not there for unlicensed EAs. Therefore, all these add to strong incentives for unlicensed EAs to remain unlicensed.

To stem the supply of unlicensed agencies, we will raise the penalties for unlicensed agencies to ensure that they are commensurate with the potential gains from malpractices. The most significant increase in the maximum penalties under the Act will be for operating an unlicensed EA in section 6. The first offence will warrant a fine of up to $80,000 and/or up to two years...