Tjong Mark Edward v PP

• Judgment Date: 06 April 2015
• Date: 06 April 2015
• Docket Number: Magistrate's Appeal No 167 of 2014/01-02
• Court: High Court (Singapore)

Tjong Mark Edward

Plaintiff

and

Public Prosecutor and another appeal

Defendant

[2015] SGHC 79

Tay Yong Kwang J

Magistrate's Appeal No 167 of 2014/01-02

High Court

Criminal Law—Statutory offences—Prevention of Corruption Act (Cap 241, 1993 Rev Ed) —Accused receiving moneys after alleged favour done—Whether lack of agreement fatal to corruption—Whether accused contemplating gratification before or when alleged favour done—Whether accused accepting moneys as gratification for alleged favour—Section 6 (a) Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing—Revision of proceedings—Accused's appeal against sentence dismissed—Whether High Court should exercise discretionary powers to enhance sentence

Criminal Procedure and Sentencing—Sentencing—Appeals—Whether sentence manifestly excessive

[Editorial note: This case comprises a main judgment (with the neutral citation [2015] SGHC 79 and dated 24 March 2015) and a supplementary judgment (with the neutral citation [2015] SGHC 91 and dated 6 April 2015).]

Tjong Mark Edward (‘Tjong’) was charged with two counts of corruptly obtaining gratification as agent under s 6 (a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (‘PCA’).

Tjong was the Director of Business Development of ST Electronics (Info-Software Systems) Pte Ltd (‘STE’). His role was to identify potential areas of business and promote STE's business. He was introduced to one Mujibur Rahman (‘Mujibur’), a Bangladeshi national. Following Tjong's recommendation, he was appointed in March 2006 as STE's agent to help secure a certain project in Bangladesh (‘the Project’). The agency agreement provided that if Mujibur was successful in obtaining the Project for STE, he would get a commission of 7% of the contract price. Mujibur secured the Project for STE in May 2006 and STE then gave Mujibur his commission via a cheque for $185,424.90, which was deposited into Mujibur's Citibank account.

A few days later, in Bangladesh, Mujibur gave Tjong two signed blank cheques (‘C 1’ and ‘C 2’ respectively) which would draw on Mujibur's said Citibank account. Tjong then filled in the cheques for $57,386.67 and $30,000.00 respectively. C 1 and C 2 were deposited into the bank account of one Ho Su Ling (Tjong's then-girlfriend, now his wife), from whom Tjong later received these sums. These two sums corresponded to the two counts of corruption for which Tjong was charged.

At trial, the district judge (‘DJ’) found an objective corrupt element. He found that Tjong accepted money from Mujibur as part of a profit-sharing scheme, intending it to be his reward for having recommended Mujibur to STE. To the DJ, Tjong's explanation of C 1 (that it represented training expenses in connection with the Project which he passed to Mujibur through one Burhan, an intermediary) did not raise a reasonable doubt as to its purpose, but his explanation of C 2 (that it was used to run Mujibur's errands) did. Accordingly, Tjong was convicted on the first charge (for which he was sentenced to eightweeks' imprisonment and ordered to pay a penalty) and acquitted on the second. Tjong appealed against the conviction and sentence on the first charge while the Prosecution cross-appealed against the acquittal on the second charge.

After Tjong's appeal was dismissed and the Prosecution's cross-appeal was allowed, the Prosecution submitted that the global sentence should be five to seven months' imprisonment, and applied for criminal revision to normalise the two sentences.

Held, dismissing the appeal and allowing the cross-appeal, sentencing the appellant to four weeks' imprisonment on the second charge and imposing a further penalty of $30,000.00:

(1) The lack of an agreement or specific understanding did not prevent a finding of corruption. It was natural for the word ‘reward’ in s 6 (a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) to have a post facto meaning, especially considering that s 6 (a) contained the phrases ‘as an inducement or reward for’ and ‘for having done or forborne to do’. It would also be undesirable if the lack of an agreement was fatal to a finding of corruption, since corruption could be disguised as rewards after the event: at [26] and [37] .

(2) Tjong contemplated a reward for facilitating Mujibur's appointment as agent and this had to have influenced him when recommending Mujibur to STE. First, Tjong had to have known the level of influence he enjoyed in respect of STE's affairs in Bangladesh. Next, Tjong took an unusual interest in Mujibur's attempt to win the tender for the Project. Thirdly and crucially, Tjong and Mujibur understood that profit-sharing was a common business practice in Bangladesh. The fact that Tjong went along with the idea instead of refusing or asking why showed the underlying unspoken understanding between the twomen and that Tjong's conduct was not entirely above board. Moreover, Mujibur also understood that the exact split was decided spontaneously for each project, but it would not be something irrational: at [33] to [38] .

(3) Mujibur's explanation that C 1 and C 2 were for profit-sharing was credible. First, his explanations were consistent both internally and with the surrounding evidence. Next, his credibility was rightly not impeached based on a statutory declaration apparently at odds with his evidence at trial as it was not established that Mujibur had fully read it before signing it, as the SD was withheld until trial without good reasons, and as the contents had been clarified at trial. Finally, Mujibur also could not be treated as an accomplice as he had no incentive to lie and, in any event, he had been fair to Tjong in his evidence: at [48] to [51] , [53] to [55] , [57] and [58] .

(4) Tjong's explanations did not raise a reasonable doubt. In relation to C 1, his explanations as to how he filled in the sums and asked his then girlfriend to deposit the cheques were unbelievable. Crucially, he failed to call Burhan as a witness and he failed to mention important details raised at trial in his statements. In relation to C 2, Tjong's chronology made very little sense as compared to the Prosecution's explanation, which made far more sense. Moreover, several claims were not put to Mujibur. Tjong's explanation raised a mere possibility that was fanciful when juxtaposed against the totality of the evidence. The DJ erred in finding that this possibility raised a reasonable doubt: at [60] to [69] .

(5) With respect to the sentence for the first charge, the DJ did not err with respect to the proper factual matrix or the weight ascribed to the relevant factors, and the sentence was not manifestly excessive considering the precedents. Tjong was in a position of trust and influence, but he compromised his duty to STE, acting with premeditation and deliberation to disguise the true purpose of the moneys. The gratification in C 1, together with the amount involved in C 2, represented 47.1% of Mujibur's commission, which was by any standard a generous share: at [78] to [82] .

(6) The court could not exercise its revisionary powers in respect of the sentence for the first charge. First, the court could not revise the decision of a subordinate court as it had been upheld on appeal by the High Court. Second, in asking for a global sentence of five to seven months' imprisonment and for a criminal revision to normalise the sentence, the Prosecution was effectively appealing against sentence. Third, there was no serious injustice here calling for the exercise of the court's revisionary powers: at [86] .

(7) The sentencing factors regarding the first charge applied equally to the second charge. C 1 and C 2 were equally surreptitious because Tjong split the sum into two cheques to disguise the true nature of the moneys. C 2 was not less surreptitious than C 1 simply because it was not disguised to look like legitimate expenses. Similarly, C 2 was not more premeditated than C 1 simply because Tjong waited about two weeks to deposit and encash C 2. Tjong's attempts to cover his tracks were part and parcel of one big transaction. In light of the amount in C 2, the sentence for the first charge and the precedents cited, fourweeks' imprisonment was an appropriate sentence, together with an additional penalty of $30,000.00: at [88] .

(8) Consecutive imprisonment terms were necessary in this case. First, the basis for the DJ's sentence on the first charge was that Tjong had received $57,386.67, but Tjong was convicted on both charges on appeal. Second, this case involved a government-linked entity and a transaction with a cross-border commercial element. The harm caused by the offences here therefore included the possible adverse impact on the reputation and integrity of Singapore companies and of Singapore generally: at [87] and [89] .

[Observation: In a one-off dealing, the objective corrupt element would not be satisfied if there was no agreement, discussion, contemplation or expectation of gratification when the alleged act of favour was done and if no favour was in fact shown. Any subsequent receipt of gratification could be a gift or a breach of an employment contract or a code of conduct or ethics. To prove corruption, the evidence had to at least have allowed the court to infer that the idea of gratification was already operating in the accused's mind. In the case of continuous dealings, it might still be corruption if the gratification received by an agent encouraged him to favour a third party in later dealings in derogation of the duties owed to his principal: at [27] , [29] and [30] .

In this case, Mujibur had hoped for further business with Tjong, and he had to be recommended by Tjong again for each subsequent project. Contemplation about future business was one basis to say that these payments were corrupt: at [30] .

An agent's helpfulness and enthusiasm in a third party's work per se should not be...