Tan Tze Chye v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 18 October 1996
• Neutral Citation: [1996] SGHC 237
• Citation: [1996] SGHC 237
• Defendant Counsel: Danielle Yeow Ping Lin (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Dominic Nagulendran (Palakrishnan & Partners)
• Date: 18 October 1996
• Docket Number: Magistrate's Appeal No 43 of 1996
• Court: High Court (Singapore)
• Subject Matter: Whether agent acted with corrupt intent,Corruptly receiving gratification,s 6(a) Prevention of Corruption Act (Cap 241),Criminal Law,Whether agent corruptly accepts gratification as reward for showing favour to person in relation to his principal's affairs,Statutory offences,Prevention of Corruption Act

The appellant was tried and convicted by a district judge on the following charge under the Prevention of Corruption Act (Cap 241, 1993 Ed) (the Act):

You,

TAN TZE CHYE,

M/45 yrs, I/C No: S0007009/B

are charged that you, on or about 30 March 1994, at 9 Battery Road, #09-08/10 Straits Trading Building, Singapore, being an agent, to wit, Managing Director of Vigers Singapore Pte Ltd, Singapore did corruptly accept for yourself a gratification of a sum of $383 (Three Hundred and Eighty Three Dollars) from one Ang Meng Tuck Andrew, the General Manager of AA Akira Advertising Pte Ltd as a reward for showing favour to the said Ang Meng Tuck Andrew, in relation to your principal`s affairs, to wit, by engaging AA Akira Advertising Pte Ltd to do the printing of 2,000 copies of brochures for Vigers Singapore Pte Ltd and you have thereby committed an offence punishable under s 6(a) of the Prevention of Corruption Act (Cap 241).

He was sentenced to pay a fine of $5,000 and, in default of which, an imprisonment term of five months. Pursuant to s 13 of the Act, the appellant was also ordered to pay a penalty of $383 and, in default of which, an imprisonment term of 30 days. The appellant appealed against his conviction. His appeal came before me on 3 October 1996. After listening to arguments by counsel for the appellant, I dismissed the appeal. I now give my reasons.

The agreed statement of facts

The prosecution and the defence agreed on a statement of facts at the trial below. I set out hereafter the facts in the statement that were relevant to this appeal.

At the time the offence was committed, the appellant was the managing director of Vigers Singapore Pte Ltd (Vigers). Vigers carried out the business of property consultancy. Sometime in November 1993, one Frank Sherwood of Fisher Rosemount Pte Ltd (Fisher Rosemount), an American company, instructed Vigers to sell an industrial property owned by Fisher Rosemount situated at No 2 Ang Mo Kio Street 64, Singapore.

In mid-February 1994, Frank Sherwood asked the appellant to introduce a suitable design firm to produce brochures to advertise the sale of the property. The appellant replied that he would make arrangements for Ang Meng Tuck Andrew (PW1) who was the general manager of AA Akira Advertising Pte Ltd (Akira), a company in the business of providing advertising and design services, to meet Frank Sherwood.

Subsequently, the appellant contacted PW1 and informed him that Frank Sherwood of Fisher Rosemount wanted him to design publicity brochures for the sale of the property in Ang Mo Kio. PW1 was keen on the job. The appellant arranged for a meeting between Frank Sherwood and PW1 on 26 February 1994.

At the meeting on 26 February 1994, PW1 presented to Frank Sherwood the mock-up of the intended publicity brochure for the sale of the property. Frank Sherwood approved the mock-up. He then instructed PW1 to produce 2,000 brochures and have them delivered to Vigers. He also asked that the invoice be sent to Vigers. Pursuant to these instructions, PW1 produced 2,000 brochures and delivered them to Vigers. These brochures were distributed by Vigers to potential buyers of the property.

As of 30 March 1994, Fisher Rosemount had paid the total amount of $35,000 into its client account with Vigers to cover marketing expenses for the sale of the property. From this account, a sum of $3,833 was made by way of cheque to Akira in payment for the design and printing of the 2,000 brochures.

Sloan Management Services (Sloan) billed Akira a sum of $383, representing 10% of Akira`s invoice of $3,833 to Vigers. Akira paid the amount of $383 in the bill to Sloan. At all material times, Sloan was a sole proprietorship registered in the name of Tang Wai Chan, the wife of the appellant. It was not disputed, however, that in reality Sloan was entirely managed and run by the appellant. Put another way, Sloan was the alter ego of the appellant at all material times.

Prosecution`s case

In addition to the agreed statement of facts, the prosecution adduced the following evidence at the trial. PW1 testified on behalf of the prosecution. He gave evidence that the appellant had told him that Vigers had undertaken to secure the printing of the publicity brochures on behalf of Fisher Rosemount. PW1 understood that he was to be engaged by Vigers with the condition that the design of the publicity brochures must be acceptable and approved by Frank Sherwood of Fisher Rosemount. The appellant asked PW1 for a 10% commission to cover Vigers. The appellant explained that Vigers had nothing to gain from undertaking to secure the printing of the publicity brochures; the commission was simply to cover Vigers.

PW1 agreed to pay this 10% commission. The payment was paid by way of a cheque, issued by Akira, dated 30 March 1994, which was made out to Sloan at the direction of the appellant. Subsequently, in the later part of 1994,PW1 received an invoice from Sloan. This invoice was backdated to 21 February 1994. This invoice stated that Sloan had provided Akira with consultancy services and the sum of $383 was owing by Akira to Sloan for these services. This was clearly false as Akira had in fact never received any consultancy services from Sloan at any point in time.

Lee Zee Ming (PW2), the chairman of Vigers at all material times, was the only other witness for the prosecution. PW2 testified that Vigers had been appointed as the sole marketing agent for the sale of Fisher Rosemount`s property in Ang Mo Kio. The sole agency agreement entered into between Fisher Rosemount and Vigers dated 2 December 1993 contained the following clause:

In consideration of the exclusiveness of this agency agreement the housing agent [Vigers] agrees to list the property in the housing agent`s company property list during the exclusive period for active dissemination to other associates of the housing agent for wider exposure and coverage and greater sale effort. In order to successfully market this property, the housing agent agrees to:

...

prepare and distribute a brokerage flyer and related sales materials. (Emphasis mine.)

PW2 testified that, under the terms of the agreement, it was clearly Vigers` responsibility to prepare brokerage flyers and related sales materials and this would include the obligation to secure the printing of publicity brochures to promote the sale of the property.

PW2 instructed the appellant to find a suitable printer to produce the publicity brochures for the sale of the property. The appellant recommended Akira for the job. At the meeting of 26 February 1994, Frank Sherwood and the directors of Vigers, including PW2, were shown the mock-up brochure by PW1. There was some discussion over the suitability of the mock-up. Frank Sherwood left the matter entirely in the hands of the directors of Vigers to approve the final mock-up before printing.

PW2 testified that Fisher Rosemount had paid the sum of $15,000 into its account with Vigers to pay for the expenses involved in securing the printing of the publicity brochures. Under the sole agency agreement, Vigers would charge Fisher Rosemount 1% of the sale price upon a successful sale of the property. Any rebates in the transaction should properly go to the client, Fisher Rosemount, and not to Vigers. The appellant was paid a fixed salary and was not allowed to receive any commissions. PW2 had no knowledge at all that the appellant had received a 10% commission for securing the printing of the publicity brochures.

The defence

The gist of the appellant`s defence was that when he procured the services of Akira to print the publicity brochures, he was not acting in his capacity as the managing director of Vigers but in his independent personal capacity. Vigers did not undertake any responsibility to market the sale of the property through publicity brochures. The sum of $383 was not a reward to the appellant for showing favour to PW1 in relation to Vigers`s affairs since the printing of the brochures was never Vigers`s responsibility. Thus, the element in the charge that the showing of favour must be in relation to the principal`s affairs was not made out. The appellant felt that he was legitimately entitled to the commission as he had acted in his private capacity in introducing PW1 to Frank Sherwood and not as an agent of Vigers. In these circumstances, it was not wrong or improper for him to have accepted a commission. Consequently, the transaction did not involve any corrupt element nor did the appellant act with any corrupt intent in accepting the sum of $383 from Akira.

The appellant elected to testify in his own defence. In his evidence, the appellant admitted that he did ask PW1 for a commission for introducing Frank Sherwood to him. PW1 indicated that he was prepared to give the appellant a 10% commission on the price of the contract. On 30 March 1994, after Akira had been paid for the printing work, the appellant, through the guise of Sloan, was duly paid his commission by Akira. The appellant declared this commission to the tax authorities.

The appellant insisted that he had introduced PW1 to Frank Sherwood in his personal capacity. He was not acting for and on behalf of Vigers since Vigers was not interested and did not want the printing job. He only asked for the commission for himself and not for Vigers. He maintained that there was no clause in the sole agency agreement between Vigers and Fisher Rosemount that obliged Vigers to undertake the printing of the publicity brochures. The appellant testified that printing and distribution of brochures publicising the sale of property did not fall within the ambit of cl 6(3) of the sole agency agreement as this was simply a standard term clause inserted in all of Vigers`s contracts.

As for the invoice rendered by Sloan to Akira dated 21 February 1994, the appellant admitted that there were in fact no consultancy services provided by Sloan to...