Tjong Mark Edward v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 06 April 2015
• Neutral Citation: [2015] SGHC 91
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 167 of 2014/01—02
• Year: 2015
• Published date: 13 June 2015
• Hearing Date: 06 February 2015,30 March 2015,24 March 2015
• Plaintiff Counsel: Shashi Nathan, Tania Chin and Jeremy Pereira (KhattarWong LLP)
• Defendant Counsel: Lynn Tan and Ang Siok Chen (Attorney-General's Chambers)
• Subject Matter: Criminal procedure and sentencing,Sentencing,Revision of proceedings
• Citation: [2015] SGHC 91

Tay Yong Kwang J:

These grounds of decision are a continuation of my judgment in Tjong Mark Edward v Public Prosecutor and another appeal [2015] SGHC 79 and I adopt the definitions which I have used there.

The appeal against sentence for the first charge

On 24 March 2015, I dismissed Tjong’s appeal against sentence for the first charge. I now set out my reasons.

In an appeal against sentence, appellate intervention is warranted if the sentence is manifestly excessive or inadequate, wrong in law or against the weight of the evidence (s 394 of the CPC). It was stated in Public Prosecutor v UI [2008] 4 SLR(R) 500 that intervention on the latter two grounds require the DJ to have: erred with respect to the proper factual basis for sentencing; failed to appreciate the material before him, or applied a wrong principle in sentencing.

In corruption cases, deterrence features strongly as a sentencing consideration. Even in private sector corruption cases, there is no presumption of a non-custodial sentence (Public Prosecutor v Ang Seng Thor [2011] 4 SLR 217 (“Ang Seng Thor”) at [33(c)] and [39] per V K Rajah JA). In determining whether the custodial threshold is crossed, the following factors can be distilled from Ang Seng Thor at [33(d)] and [42] and from the judgment of Sundaresh Menon CJ in Public Prosecutor v Marzuki bin Ahmad and another appeal [2014] 4 SLR 623 (“Marzuki”) at [28]: the seniority of the accused, the nature of the duty owed to the principal or the level of control enjoyed by the accused; the gravity of the offence as measured by the duty compromised or the mischief or likely consequence of the corruption; the size of the bribes; the number of people drawn into the web of corruption; whether such conduct was endemic, was systematic or occurred over a long period of time; and any applicable policy considerations.

The DJ reasoned that Tjong was in a position of influence, that the size of the gratification was fairly substantial and that Tjong tried to cover his tracks by disguising the sum in C1 and by using Ho’s bank account. Considering that he was a first offender, the DJ sentenced him to 8 weeks imprisonment.

Mr Nathan argued that the sentence was manifestly excessive because the custodial threshold was not crossed in this case. He said that the DJ placed too little weight on the mitigating factors and the Defence’s precedents and too much weight on the aggravating factors and the Prosecution’s precedents. He emphasised that STE did not suffer any adverse effects, that the actual profit-sharing was spontaneous and was triggered by Mujibur asking what he could do for Tjong. Further, the amount of gratification was relatively low and Tjong had no criminal record before this incident.

It is true that STE eventually secured the contract and that it would not have to pay Mujibur anything if it did not. In that sense, STE did not suffer direct monetary losses. However, the fact remains that Tjong’s duty to STE was compromised. Tjong clearly acted with premeditation and deliberation. He wrote the amount of $57,386.67 on C1 to disguise its true purpose and received the money indirectly in order to throw off suspicion. The idea to share profits was mutual and, more importantly, it was Tjong who dictated the terms of the gratification. The gratification involved was not a small amount. Together with the amount involved in C2, it represented 47.1% of Mujibur’s commission. This was by any standard a very generous share. Even Mujibur had to think of recovering the amount from future business.

I agreed with the DJ that Tjong was in a position of influence. At the material time, he was a business development director in charge of the South Asia region. Tjong’s recommendation was accepted by STE’s president unhesitatingly as he was trusted by STE to manage and promote its interest in Bangladesh.

I shall now turn to two of the precedents that the Prosecution cited. In Public Prosecutor v Rajagopal v Chandrachagaran (DAC 47221 of 2013), the accused, an operations manager, pleaded guilty to one count of receiving $39,479.40 for recommending a supplier for the procurement of equipment. He was sentenced to two months’ imprisonment. In Tang See Meng v Public Prosecutor ([2001] SGDC 161; MA 62 of 2001), the accused, a contracts manager, received gratification ranging from $10,000 to $40,000 (and totalling $140,000) on five occasions over eight months for recommending that certain work be sub-contracted to one firm. Following a trial, he was convicted on all five charges and sentenced to three months’ imprisonment per charge (the total sentence was six months’ imprisonment). No specific mitigating or aggravating circumstances were mentioned.

Mr Nathan submitted that the DJ failed to place enough weight on the “strikingly similar” case of Public Prosecutor v Subramaniam s/o Muneyandi [2003] SGDC 259 (“Subramaniam”). There, the accused, a commercial manager, was convicted after trial on two charges under s 6(a) of the PCA for obtaining two loans of $20,000 and $30,000 for recommending that ST Marine’s ship piping jobs be awarded to Omega. He was sentenced to a global fine of $25,000. It was submitted that the facts in Subramaniam were even more...