Song Meng Choon Andrew v PP

• Jurisdiction: Singapore
• Judgment Date: 14 July 2015
• Date: 14 July 2015
• Docket Number: Magistrate's Appeal No 229 of 2014
• Court: High Court (Singapore)

Song Meng Choon Andrew

Plaintiff

and

Public Prosecutor

Defendant

[2015] SGHC 180

Chan Seng Onn J

Magistrate's Appeal No 229 of 2014

High Court

Criminal Procedure and Sentencing—Sentencing—Appeals—Accused charged for giving gratification to private individual who then bribed public official to facilitate scheme to extend visitor passes of foreign hostesses—Whether global sentence of eight months' imprisonment manifestly excessive—Section 5 (b) (i) Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

The appellant, a 52-year-old male, pleaded guilty to two charges under s 5 (b) (i) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (‘the PCA’) for corruptly giving a gratification to Philibert Tng Hai Swee (‘Philibert’) as a reward for Philibert arranging a ‘U-Turn’ into Singapore for Filipino hostesses. With the consent of the appellant, three similar charges were taken into consideration for sentencing (‘the TIC charges’).

A ‘U-Turn’ would occur when a foreigner on a ‘Visit Pass’ intentionally exited to a nearby country just before the expiry of the Visit Pass and re-entered Singapore either on the same day or a few days later in order to obtain a fresh Visit Pass. This had the effect of extending the validity period of the foreigner's stay in Singapore.

In either September or October 2010, an ICA officer attached to Tuas Checkpoint, Mohammed Mustaffa bin Mohabat Ali (‘Mustaffa’), became acquainted with an unidentified Filipino female. Mustaffa agreed to help this Filipino female extend her Visit Pass in return for an undisclosed fee. After successfully extending her Visit Pass through the ‘U-Turn’, the same unidentified Filipino female introduced Philibert to Mustaffa. Both Philibert and Mustaffa hatched a scheme to facilitate the ‘U-Turn’ of these foreigners in return for a standard fee payable to Mustaffa.

In early 2011, Philibert proposed to the appellant that he could assist the hostesses working at his pub to perform ‘U-Turns’. Philibert told the appellant that he would assist by transporting the hostesses from Singapore to Malaysia and then back to Singapore after making ‘U-Turns’. Philibert also informed the appellant that he had a contact in ICA who would grant the extensions for the Visit Passes during the return trip after each ‘U-Turn’. From this conversation, the appellant understood that Philibert would have to pay his ICA contact in order to obtain the extension for the Visit Passes.

On two separate occasions in March 2011, the appellant paid $1,000 and $450 respectively to Philibert for arranging ‘U-Turns’ for hostesses working at the appellant's pub. He was thus charged for two counts of corruptly giving a gratification to Philibert as a reward for the latter arranging a ‘U-Turn’ into Singapore for the hostesses.

The district judge (‘the Judge’) sentenced the appellant to four months' imprisonment per charge and ordered that they run consecutively. The appellant appealed against the sentence.

Held, allowing the appeal:

(1) The breadth of s 5 (b) (i) of the PCA had been recognised judicially resulting in the circumscribing of s 5 by requiring both an objective corrupt element in the transaction impugned and a subjective corrupt intent. These requirements found expression through the word ‘corruptly’ in s 5. It seemed that a charge brought under ss 6 (a) and 6 (b) of the PCA could in most cases, if not all, be reframed as a charge under s 5 simply because of the sheer breadth of the latter: at [29] and [30] .

(2) It was not the case that an offence framed under s 6 of the PCA was necessarily a more serious or aggravated offence when compared to one framed under s 5 of the PCA. Both ss 5 and 6 prescribed their own range of punishment and the range provided was the same in both sections. Given this and the considerable overlap between ss 5 and 6, in the sense that s 5 might well be broad enough to encompass all the cases under s 6, it was not the intention of Parliament that an offence framed under s 6 should necessarily be regarded as more serious or aggravated as compared to one framed under s 5, or vice versa. Much depended on the nature and factual circumstances of the offence: at [31] .

(3) Section 5 (b) (i) was not a lesser offence than one under s 5 (b) (ii) of the PCA. It was not a correct assumption that where a public body was involved, the charge must necessarily be framed under s 5 (b) (ii) and that a charge could not be preferred under s 5 (b) (i) even if s 5 (b) (i) was broad enough to encompass the fact situation, and that, further, if a charge was framed under s 5 (b) (i), the fact that it involved a public body then cannot be taken into account in sentencing. It appeared that s 5 (b) (ii) was in essence a sub-set of s 5 (b) (i). If that was the case, then it cannot be said that s 5 (b) (i) was necessarily a lesser offence than one under s 5 (b) (ii) since they both had the same range of punishment. Generally speaking, when all other things were equal, corruption which involved a public body would be ‘more egregious’ than one which did not. However, a factual scenario involving a public body need not necessarily be brought under s 5 (b) (ii): at [35] and [36] .

(4) In each case the court had to be more concerned with the specific nature of the corruption, and sentence on that basis taking into account the specific aggravating and mitigating factors present. Existing precedents might provide the court with some guidance on the appropriate sentence to impose. A court should not be overly concerned with whether a charge was brought under s 5 or s 6 of the PCA but should focus on the specific nature of the corruption in the particular case: at [36] .

(5) The appellant was charged for corruptly giving a gratification to Philibert, who was a private individual. The appellant could not be said to have corruptly transacted with Mustaffa. The prosecution had exercised its discretion to charge the appellant for corruptly giving a gratification to Philibert, not Mustaffa. Accordingly, the appellant should be sentenced for corruptly giving a gratification to Philibert, the private individual who operated and facilitated the ‘U-Turn’ scheme and who had corruptly transacted with Mustaffa. This was the specific nature of the corruption involved in this particular case and the Judge was in error for failing to appreciate this. What the Judge did was to equate the appellant's understanding that some money would be given by Philibert to his own ICA contact to ‘the appellant corruptly giving gratification to Mustaffa’. This was impermissible as it amounted to sentencing the appellant based on a charge he did not plead guilty to. By sentencing the appellant as if he had corrupted Mustaffa, the Judge had meted out a sentence which was manifestly excessive in the circumstances: at [38] and [40] .

(6) The appellant understood that part of the money used to bribe Philibert would be used by Philibert to bribe a public officer. The TIC charges, which were bribes for previous successful ‘U-Turns’ carried out, clearly showed that in committing the acts which formed the bases of the proceeded charges, the appellant would have known that a public officer had to be bribed somewhere down the line, although not by him. The appellant knowingly partook in a criminal scheme which would lead to an erosion of public confidence in the essential institutions of government. It was because of this particular aggravating factor that a custodial sentence was warranted. Had the appellant been charged for directly bribing Mustaffa, the custodial sentence meted out by the Judge would have been justifiable since the very acts which undermined public confidence (ie, the bribery of a public official) would have been done by the appellant: at [44] to [46] .

(7) Bearing in mind the relevant aggravating and mitigating factors, an appropriate sentence in this case was an imprisonment term of six weeks per charge. This appropriately reflected the need for deterrence in cases where public confidence in the institutions of government was compromised. It also reflected the degree of culpability of the appellant in the ‘U-Turn’ scheme, the fact that multiple offences were committed and that there was premeditation on the part of the appellant. The fact that bribe amount was relatively small and the appellant cooperated with the authorities and had demonstrated remorse was also taken into account. Considering the overall criminality of the appellant's actions, it was also appropriate to order the two imprisonment sentences to run consecutively which resulted in a global term of 12 weeks' imprisonment: at [79] and [80] .

[Observation: The historical context showed that s 6 was first to find footing in the corpus of the criminal law of Singapore. Section 5 was then introduced as a means of providing ‘wider powers to fight bribery and corruption’. Section 6 was retained and it had not lost its efficacy, as over the years the prosecution had continued to prefer charges under s 6 whenever it was specifically applicable. This demonstrated the pragmatic approach Parliament had taken in legislating wide powers in the PCA as part of its unrelenting effort to eradicate corruption: at [34] .]

Chan Kum Hong Randy v PP [2008] 2 SLR (R) 1019; [2008] 2 SLR 1019 (refd)

Chan Wing Seng v PP [1997] 1 SLR (R) 721; [1997] 2 SLR 426 (refd)

Knight Glenn Jeyasingam v PP [1992] 1 SLR (R) 523; [1992] 1 SLR 720 (refd)

Meeran bin Mydin v PP [1998] 1 SLR (R) 522; [1998] 1 SLR 522 (refd)

Mohamed Shouffee bin Adam v PP [2014] 2 SLR 998 (refd)

PP v Ang Seng Thor [2011] 4 SLR 217 (refd)

PP v Howe Jee Tian [1998] 3 SLR (R) 587; [1999] 1 SLR 127 (refd)

PP v Marzuki bin Ahmad [2014] 4 SLR 623 (refd)

PP v Ong Chin Huat [2008] SGDC 76 (refd)

PP v Siew Boon Loong [2005] 1 SLR (R) 611; [2005] 1 SLR 611 (refd)

PP v Syed Mostofa Romel [2015] 3 SLR 1166 (refd)

PP v Tan Chin Gee [2009] SGDC 229 (refd)

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