District Judge May Lucia Mesenas:
1 On 2 September 2009, the Accused pleaded guilty to 4 charges for abetting by instigating one Yeo Siak Yong, in the applications for work permits for foreign workers to falsely declare to the Controller of Work Passes that the firm’s (namely “Royal Plus Services”) Central Provident Fund (CPF) accounts only included contributions made to persons actively employed by the firm, a fact which the accused knew to be false, which are offences under section 22(1)(d) read with section 23(1) and punishable under section 22(1)(ii) of the Employment of Foreign Manpower Act (EFMA) Cap 91A.
2 The remaining 7 similar charges were taken into consideration for the purposes of sentencing.
3 The accused was sentenced to nine months imprisonment in total for the proceeded charges. He has appealed against the sentence and has been on bail pending the appeal since 30 October 2009.
Statement of Facts
4 The Accused admitted to the Statement of Facts (Exhibit ‘PS1’) pertaining to the charges, without qualification. He was therefore convicted on the charges accordingly. The salient points are as follows:
(a) The accused was a bankrupt and had used his father’s name, that is, Yeo Siak Yong, to start a sole proprietorship, “Royal Plus Services” (hereinafter referred to as ‘the firm’). The accused was solely in-charged of running the business while his father was the sole proprietor in name only.
(b) The accused had instructed his father to falsely declare in the applications for work permits of four foreign workers that the said firm’s CPF account only included contributions made to persons actively employed by the firm, which fact the accused knew was false.
(c) The accused was aware that the foreign workforce entitlement for the firm was calculated based on the number of local workers employed by the said firm. He was also aware that the number of local workers was determined from the CPF records of the firm’s CPF contributions to its employees.
(d) In order to obtain the foreign workforce entitlement, the accused had obtained a list of local workers from a recruitment exercise he conducted in September 2008. To this end, these ‘phantom workers’ were, however, not actively employed by the firm. In fact, the entire local workforce comprised of these ‘phantom workers’ who were paid CPF contributions by the accused.
(e) The declaration that all the local employees were actively employed by the firm was a material consideration in the Ministry of Manpower’s (MOM) decision to grant work passes to the foreign employees. The Work Pass Division (WPD) of the MOM confirmed that had they known at the time of the said work permit applications, that not all of the local workers receiving CPF contributions from the firm were in fact actively employed by the said firm, WPD would not have approved the four work permit applications.
(f) Furthermore, WPD also confirmed that the four applications would not have been approved as the firm did not have any foreign workforce entitlement based on its genuine local workforce, which was zero in the present case.
Antecedents
5 The accused’s antecedents are set out below:
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Date
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Offence /Antecedent
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Sentence
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30/4/1999
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s. 392 r/w s. 34 Penal Code Cap 224
- Robbery
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30 months imprisonment and
6 strokes of the cane.
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22/4/2003
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s.182 Penal Code Cap 224
- Giving false information
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2 months imprisonment
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17/6/2005
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s.468 r/w s. 109 Penal Code Cap 224
– Abetment of forgery for the purpose of cheating
(9 counts); 8 similar charges TIC.
One charge under s. 379 Penal Code
Cap 224 TIC.
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14 months imprisonment per
charge; three sentences to run
consecutively.
Total: 42 months imprisonment.
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Mitigation
6 The accused who was unrepresented, pleaded for leniency and for a fine to be imposed. He claimed that he had turned over a new leaf after he was last released from prison. The accused sought an adjournment for sentencing to be postponed for two weeks. On 15 September 2009, the accused engaged defence counsel, Mr Allister Lim, who applied to adjourn the matter for two weeks to take instructions as well as to further mitigate on the accused’s behalf. A final adjournment was granted then.
7 On 30 September 2009, Mr Lim applied to discharge himself and Mr Anthony Lim took over the conduct of the matter. He applied for a three-week adjournment to mitigate on behalf of the accused as well as to obtain documents for his mitigation plea. Furthermore, the accused had instructed counsel that he needed to complete some projects before serving his sentence lest he be sued for breach of contract.
8 In Mr Anthony Lim’s mitigation plea (Exhibit “D1”), he submitted that the accused, who was made a bankrupt due to his past offences, had worked very hard in which the latter’s company was awarded various cleaning contracts in many places.
9 According to counsel, the accused had tried on many occasions to engage local workers to work as cleaners. He had in fact advertised on four occasions but failed to get any local workers, and had to resort to engaging Chinese PRC nationals, so that he could fulfil his contracts.
10 The accused is supporting his family including his mother who is a stroke victim and bedbound. Furthermore, his Myanmese wife had just given birth to his son on 19 August 2009. It was submitted that the accused was remorseful and that a global sentence of two months imprisonment for all the proceeded charges should be imposed.
Prosecution’s submission
11 The prosecution submitted for a custodial sentence and tendered a table of sentencing precedents (Exhibit “P2”) consisting of similar cases.
Prescribed Punishment
12 The punishment prescribed for the offence under the EFMA is imprisonment up to 12 months or fine of up to $15,000 or both.
Sentencing considerations
13 Before the legislative amendments in 2007, such similar offences were previously prosecuted under the Employment of Foreign Workers Act (EFWA) for which the punishment prescribed was a fine of up to $5,000 or imprisonment of up to six months. At the second reading of the Amendment Bill on 22 May 2007, the Minister of Manpower explained that given the rise and prevalence of such offences especially where companies work around the system through fraud, such practices undermine the integrity of the entire system and as such, there was a need to increase the penalties for such offences. The relevant portions of the speech are below:
Next, offences of deception. We have made work pass applications user-friendly by allowing submissions through fax, mail or electronically. Work pass criteria are also made known to companies so that they have greater certainty to plan for their manpower needs. Some, knowing these rules, which are now made explicit, may choose to work around the system through fraud. The number of foreigners who obtained their Employment Passes and “S” passes through illegal means, by either using fraudulent documents or over-declaring their actual salaries, has increased by nearly four-fold from 97 cases in 2005 to 374 cases in 2006. These workers have entered our system illegally and, if left unchecked, these abuses will over time undermine the integrity of the entire system. Accordingly, clause 22 increases the penalties for such offences, which include the provision of false information, the illegal trade and alteration of work passes and the possession of forged work passes, to be similar to those for illegal employment, which are a maximum fine of $15,000 or 12 months’ imprisonment or both.
(Emphasis added)
14 Thus, with the increase in penalties, Parliament had clearly intended that such offences committed as a result of deception practised on the MOM are to be treated seriously.
Sentencing precedents
15 From the sentencing precedents tendered by the prosecution (Exhibit “P2”), it was clear that where false declarations concerning CPF contributions were a material consideration in increasing the employer’s foreign workforce entitlement, an imprisonment term of between two to four months per charge had been imposed: see PP v Sulaiman Bin Abdullah @ Goh Beng Hock Tommy (DAC12112/09 & others); PP v Wong Piang Kai (DAC 15122/09 & others); PP v Woon Siew Chor @ Mun Siew Chor (DAC 12363/09 & others); PP v Soo Eng Yong (DAC 13588/09 & others) and PP v Lim Chek Chee (DAC 12350/09 & others).
16 In PP v Sulaiman bin Abdullah @ Goh Beng Hock Tommy (supra), the accused pleaded guilty to five charges for false declarations concerning CPF contributions. This was intended to mislead MOM on the strength of his local workforce so that his company would be granted an increased foreign worker quota. The applications would not have been approved if not for his deception. Five similar charges were taken into consideration for sentencing. In mitigation, the accused claimed that he had tried to recruit Singapore workers but without success. He was sentenced to two months imprisonment on each of the proceeded charges with three of the terms to run consecutively. The total sentence imposed was thus six months’ imprisonment.
17 In PP v Wong Piang Kai (supra), the accused made false declarations that the CPF contributions made by his sole proprietorship were to persons actively employed by the sole proprietorship, when this was not true. The applications would not otherwise have been approved. He pleaded guilty to 12 such charges, with 13 similar other charges taken into consideration for the purposes of sentencing. He also faced 25 other charges for false declarations concerning foreign workers he claimed he would employ, when he had no intention of doing so. He left them to their own devices when they came to Singapore. He was sentenced to four months’ imprisonment per charge for the false declarations concerning CPF contributions, with the terms for four charges to run consecutively. His total sentence was 16 months’ imprisonment.
18 Notably is the recent case of PP v Sambani Anil Pritambas [2009] SGDC 244, in which the accused pleaded guilty to seven charges for false declarations concerning CPF contributions in order to inflate and maintain his foreign worker entitlement. Eight charges were taken into consideration for the purposes of sentencing. The district judge noted that such acts circumvented MOM’s policy objective of imposing a dependency ceiling on employers to ensure that employers cannot satisfy their manpower requirements by wholly relying on foreign manpower to the exclusion of locals. Specifically the following observations were made at [33] and [34]:
33…..As the Minister for Manpower had explained at the second reading of the Amendment Bill:
We constantly monitor the labour situation and make fine adjustments to maintain the equilibrium between our economic competitiveness and other social objectives, to enable locals to compete for jobs. For example, we allow more foreign workers in the construction and marine sectors where locals are less inclined to work; we allow a lower proportion in the manufacturing and services-related industries, and almost none in community-based shops and stalls. We have also taken a more liberal approach, with lesser controls, towards foreigners with better qualifications and skills. This is intentional, to attract skilled labour for which there is a global shortage.
34 It is clear from the above that the Ministry of Manpower adopts a deliberate and calibrated approach in determining the proportion of foreign workers vis-à-vis local workers that is allowed in any particular sector. Those who circumvent the dependency ceiling by resorting to the use of phantom workers to inflate their foreign worker entitlement distorts the actual proportion of foreign workers working in Singapore and undermines the effectiveness of the framework put in place by the Ministry for maintaining the balance between the manpower needs of employers and the social objective of enabling locals to compete for jobs. In Dong Guitian v PP [2004] SGHC 92 at [40], it was held that an act of deception that frustrated the intention of the Singapore Government to effectively regulate the recruitment of foreign labour in Singapore is an aggravating factor.
19 The district judge sentenced the accused to two months’ imprisonment per charge, with three of the terms to run consecutively. The total sentence was thus six months’ imprisonment. The matter was pending appeal at the time I sentenced the present accused. The appeal has since been dismissed by the High Court on 4 December 2009.
Appropriate sentence
20 Like the offenders in the cases highlighted above, the present case similarly involved the recent phenomenon of ‘phantom workers’. Employers make CPF contributions to persons who do not in fact work for them, knowing that MOM will rely on the company’s CPF records to determine the number of local workers that they have. MOM is thus deceived into believing that they employ a certain number of local workers, and grants them an increased foreign worker entitlement/quota, since it is pegged to the number of local workers employed.
21 It must also be borne in mind that such fraud also frustrates the policy of MOM to ensure that a certain number of jobs for locals are assured. This is especially more aggravating when the false declarations were a material consideration for MOM to grant employers an increased foreign worker entitlement. In the present case, the MOM would not have approved the 4 work permit applications had they known that the local workers receiving CPF contributions from the accused’s sole proprietorship were in fact not actively employed by the said company.
22 As highlighted above, the courts have been consistently treating such cases seriously and custodial sentences have been meted out to deter potential offenders from making these false declarations to circumvent MOM’s policy of having a foreign worker dependency ceiling. Such cases would invariably be premeditated as in the present case where the accused had deliberately conducted a recruitment exercise in September 2008 to gather a list of locals for purposes of making CPF contributions when he did not intend to actively employ them. The present case is therefore no exception to the other similar cases which have already been dealt with and a custodial sentence would therefore be appropriate.
23 In determining the appropriate length of the imprisonment term, I took into account that the accused had pleaded guilty, thus saving the court’s time and resources. However, I did not find the accused’s claim that he had committed the offences as he was driven by circumstances to do so, to be of any mitigatory value. The accused claimed that he was unable to get any local workers to work for him. Indeed, the accused could have found the requisite number of local workers if he was willing to pay them a high enough salary. Alternatively, the accused could have made do without the extra workers which would in turn put him at risk of completing the contracts late, thereby possibly attracting penalties which were likely to be pecuniary. However, the accused chose to deceive the MOM instead, knowing that it would result in him obtaining more foreign workers, which would effectively deprive our genuine local workforce of jobs. He must therefore pay for the consequences of his actions.
24 Furthermore, I had to take into account the accused’s previous convictions. Although they were not for similar charges as the present ones, nonetheless they relate to offences of deception, which are similar in nature as the present offences. In particular, the accused was sentenced to two months imprisonment for giving false information under section 182 Penal Code Cap 224. Thereafter, in 2005, he was sentenced to 42 months imprisonment in total for offences of forgery for the purpose of cheating under section 468 read with 109 of the Penal Code Cap 224. He was only released in 2007 and barely within a year or so after that, he had committed the present offences. The accused’s propensity to re-offend, especially in relation to offences similar to his previous convictions, is an aggravating factor which had to be taken into account.
Conclusion
25 Having considered the facts and circumstances of the case, I was of the view that the overall sentence should give effect to general and specific deterrence, in sending a clear signal that stiff custodial sentences will be imposed for offenders such as the accused.
26 Thus, the starting point of two months imprisonment per charge would clearly be inappropriate. The sentence had to be scaled up to reflect the accused’s culpability in choosing to re-offend and had to have a measure of specific deterrence to curb his repeated flouting of the law. I was therefore of the view that the overall sentence of nine months’ imprisonment was appropriate in the circumstances, and therefore imposed a three-month imprisonment term for each charge and ordered three of the sentences to run consecutively.
The Accused was sentenced to nine months’ imprisonment.
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