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 |
Under s 6(1) read with s 28A(1)(a) the Employment Agencies Act (Cap 92, 2012 Rev Ed) (“
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 (“
Benedict Yeo Tian Ming (“
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 determinationAfter 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:
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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
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 (“
During the Material Period, Edupal was not a licensed employment agency. It is the policy of the Ministry of Manpower (“
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:
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 addressedThis 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 (
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 countriesby 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...
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