Robert Robert (Hong Kong) Ltd Goh Pei Song Robert v Public Prosecutor
| Jurisdiction | Singapore |
| Judge | Alvin Koh Meng Sing |
| Judgment Date | 31 December 2002 |
| Neutral Citation | [2002] SGMC 28 |
| Year | 2002 |
| Published date | 01 October 2009 |
| Citation | [2002] SGMC 28 |
| Court | Magistrates' Court (Singapore) |
Judgment
GROUNDS OF DECISION
The first accused, Hong Kong registered Robert & Robert (Hong Kong) Ltd was represented by its director, Goh Pei Song, Robert ("Robert Goh"). It claimed trial to a charge under section 368(1) of the Companies Act (Chapter 50, 1994 Revised Edition) for failing to lodge prescribed documents with the Registrar of Companies prior to the "establishment of a place of business and commencement of business" in Singapore. Robert Goh was also charged in his capacity as director and representative for having intentionally aided Robert & Robert (Hong Kong) Ltd to "carry on a business in Singapore" without first registering as a foreign company with the Registrar of Companies.
2. The following facts were undisputed at the trial: Robert & Robert (Hong Kong) Ltd is a Hong Kong company and did not lodge any documents for registration with the Registrar of Companies in Singapore. It had some dealings with Kienta Engineering Construction Pte Ltd ("Kienta") and Guan Liong Construction Pte Ltd ("Guan Liong") regarding the "Proposed construction, completion and maintenance of 1600 guest rooms, 400 staff rooms and facilities, 5 star hotel/resort in Bali, Indonesia" ("the Bali project"). Throughout these dealings, Robert Goh acted as the representative of Robert & Robert (Hong Kong) Ltd. At the end of the trial, I convicted both accused of their respective charges and sentenced each to the maximum fine of $1,000. Both appealed against conviction and sentence.
The Case For The Prosecution
Testimony of PW1 – Ms Lim Sok Peng (‘Ms Lim’)
3. Assistant Registrar, Ms Lim, was the first of three prosecution witnesses. Ms Lim oversees the data entry section and sales of company information at the Registry of Companies and Businesses ("RCB"). She confirmed that RCB had no records of Robert & Robert (Hong Kong) Ltd having been registered as a foreign company in Singapore.
4. During Ms Lim’s cross-examination, the defence tendered a printed extract from "BizNet" ("D1") of the particulars of a company known as "Robert N Robert (HongKong) Pte Ltd" which she confirmed to be an accurate reflection of RCB’s register. As was stated, Robert N Robert (HongKong) Pte Ltd is a Singapore incorporated company with a paid-up capital $2 and was to be differentiated from the first accused, Robert & Robert (Hong Kong) Ltd. It was not the holding company of Robert & Robert (Hong Kong) Ltd but it shared a common director, Robert Goh, who also held one of the two shares comprising its entire shareholding.
Testimony of PW2 – Lee Kok Kong (‘Mr Lee’)
5. Mr Lee is the general manager of Kienta. By way of a letter dated 21 August 2000(P4), a firm of architects, Akitek KHP, acting on behalf of Robert & Robert (Hong Kong) Ltd, invited Kienta to tender for the Bali project. However, this required Mr Lee to pay $5,000 for the tender documents and this was duly done by way of a Cashier’s Order addressed to Robert & Robert (Hong Kong) Ltd (P5). In the course of these dealings, subsequent negotiations were carried out and Mr Lee tendered the correspondence to the court:
Letter dated 15 September 2000 from Kienta to Robert & Robert (Hong Kong) Ltd to tender for the Bali project (P6)
Follow-up tender documents dated 15 September 2000 and Letter of Offer dated 15 September 2000 from Kienta (P7)
Letter dated 22 September 2000 to Robert & Robert (Hong Kong) Ltd for submission of tender insurance bond (P8)
Copy of Insurance Bond dated 22 September 2000 from The Tai Ping Insurance Company Ltd requested by Kienta (P9)
Letter dated 2 October 2000 from Kienta to Akitek KHP in reply to the latter’s Letter of Award (P11)
6. In addition, the tender called for a cash cheque or Banker’s Guarantee of $118,000 to be furnished in the event of a successful bid. However, in spite of news from Akitek KHP that they were successful, Kienta was uncomfortable with the arrangements as standard practices were not followed. Following negotiations with Robert Goh, an insurance bond in favour of Robert & Robert (Hong Kong) Ltd was eventually issued instead and the documents were personally handed over by Mr Lee to Robert Goh at his Everitt Road residence. Mr Lee also had at least three meetings at Robert Goh’s house to discuss the Bali project. Throughout these dealings, Mr Lee was unequivocal that he dealt with Robert & Robert (Hong Kong) Ltd, believing it to be the developer or owner of the Bali project, while he also held the belief that Akitek KHP’s role was that of a project manager. Further, he was also certain that he had never dealt with Robert N Robert (HongKong) Pte Ltd simply because its paid-up capital was only $2 and there was a multi-million dollar project at stake. Mr Lee was also aware that the contract stated that Indonesian law was the governing law of the contract and that the Indonesian courts had exclusive jurisdiction on the contract. Ultimately, however, Kienta and Robert & Robert (Hong Kong) Ltd did not eventually enter into a binding final contract on the construction of the Bali resort.
Testimony of PW3 – Mr Lim Hiong Chua Vincent (‘Vincent Lim’)
7. Guan Liong was also invited to tender for the Bali project. Its manager, Vincent Lim, was unequivocal in stating that Robert Goh was the sole representative of Robert & Robert (Hong Kong) Ltd and he had met him up to 10 times at his Everitt Road residence for discussions. Like Kienta, Guan Liong paid $5,000 to Robert & Robert (Hong Kong) Ltd for the tender documents. Following the tender instructions, a further $118,000 was paid in a cheque to Robert & Robert (Hong Kong) Ltd when Guan Liong was informed that the Bali project had been awarded to it. Throughout the dealings, Vincent Lim was under the impression that Robert & Robert (Hong Kong) Ltd was the owner of the land, and also the project manager. He was unaware that Robert Goh owned a group of other companies in Singapore and had never heard of the Singapore registered Robert N Robert (HongKong) Pte Ltd. Vincent Lim produced five letters from Robert & Robert (Hong Kong) Ltd on its letterhead detailing his correspondence with it (P13 – P17):
Letter of Award dated 20 October 2000 awarding the construction of the Bali project to Guan Liong signed by Robert Goh in his capacity as "Group Managing Director/CEO-Operations" (P13).
"Letter of Awarded (sic) dated October 20, 2001" signed by Robert Goh as "Managing Director/ CEO Operations" dated 12 February 2001 (P14).
Letter dated 18 July 2001 where Robert Goh informed Vincent Lim that the Site Master Plan and the Work Schedule were being amended (P15).
Letter dated 14 August 2001 where Robert Goh wrote to Guan Liong informing it that it had received the amended Building Plans from the architects and advised it to collect the same from Robert Goh (P16).
Letter dated 17 October 2001 where Robert Goh sent a letter to Guan Liong inviting either Vincent Lim or one Ng Hock Guan to attend a meeting to discuss the final construction quotation (P17).
The close of the prosecution’s case
8. At the close of the prosecution’s case, the defence made a submission of no case to answer. Applying the test in Haw Tua Tau v PP
The Case For The Defence
Testimony of DW1 – Robert Goh
9. The defence rested on the sole testimony of Robert Goh. He is a Singaporean and during the material time resided at 45 Everitt Road, Singapore. He was responsible for incorporating no less than five companies in Singapore. In essence, his defence was that his Singapore company, Robert N Robert (HongKong) Pte Ltd was acting as project manager on behalf of Robert & Robert (Hong Kong) Ltd in its Bali project dealings in Singapore. He claimed that this information was specifically communicated to the representatives from Kienta and Guan Liong and said that it was never his intention to use Robert & Robert (Hong Kong) Ltd to carry on any business with either Kienta or Guan Liong. Had he seriously intended to do business here, he would have used his Singapore registered Robert N Robert (HongKong) Pte Ltd instead. He also confirmed that Robert & Robert (Hong Kong) Ltd maintained a bank account in Singapore.
10. In the course of his testimony, the prosecution sought to impeach Robert Goh’s credit using his long statement to Commercial Affairs Department officers recorded on 28 November 2001 (P18). This point would be dealt with subsequently.
Defence’s closing submissions
11. The defence submitted that no business was conducted in Singapore. While Robert & Robert (Hong Kong) Ltd may have sought a tender from Kienta for the Bali project, payment of the costs of tender documents was paid directly to its local bank account because neither Robert N Robert (HongKong) Pte Ltd nor Robert Goh had the authority to receive such payments in their respective names. The performance of the contract was to be in Indonesia, and Indonesian law was designated to be the governing law for dispute resolution in the Indonesian Courts. Further, by application of provisions under the Income Tax Act (Cap. 134), since Kienta or Guan Liong had an option to decide if the income earned ought to be remitted and consequently be liable for tax in Singapore, this was decisively in their favour; otherwise, even if income was not remitted, business would still be deemed to have taken place in Singapore. These were factors to be considered against finding that business was carried on in Singapore.
Prosecution’s closing submissions
12. For its part, the prosecution submitted that section 368(1) of the Companies Act is a strict liability offence. A place of business need not be business premises, provided that the company’s business was being carried on from a fixed place within the jurisdiction. The prosecution...
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