High Court: Jail is starting point sentence for false declarations relating to work passes

SINGAPORE – Jail terms should be the starting point in sentencing individuals who make false declarations to the authorities in connection to work pass applications, the High Court ruled on Monday (July 22).

Justice Aedit Abdullah said sentences imposed for such offences under the Employment of Foreign Manpower Act have been inconsistent, with courts either meting out fines of about $8,000 or imposing short jail terms.

A custodial sentence should be the starting point, the judge said, given the need to maintain the integrity of the workforce, the need for deterrence to prevent circumventions of the work pass framework, and the seriousness and prevalence of such offences.

From 2016 to 2017, at least 134 individuals were convicted of making a total of 494 false declarations in connection with work pass applications or renewals, according to figures provided by prosecutors.

The ruling came in a case involving construction boss Chiew Kok Chai, who hired three foreign workers he was not entitled to employ by getting round manpower rules.

Chiew’s company, Wan Fu Builders, was barred from hiring foreign workers due to previous defaults in levy payments.

He conspired with another person to apply for three work passes under the name of another company, Wee Chong Construction, but the employees worked solely for Wan Fu.

Last year, Chiew was sentenced to 12 weeks’ jail on three charges of engaging in a conspiracy to make the false declarations.

He appealed to the High Court against the jail term, arguing that fines are generally imposed except in more serious cases involving forgery or the declaration of “phantom” workers to boost companies’ foreign worker entitlements.

The prosecution argued that deterrence was the dominant sentencing consideration, and asked the court to set out sentencing guidelines to rationalise past inconsistencies.

In a written judgment on Monday, Justice Aedit noted that the Act aims to protect the work pass framework by imposing deterrent sentences.

He said the fact that the penalties have increased three times over the past 40 years reflected Parliament’s intent to deter offences of deception through stiff sentences.

The maximum punishment was most recently raised in 2012, to a fine of up to $20,000, jail of up to two years or both.

Justice Aedit added that a “heavy response” was required to properly regulate foreign manpower in Singapore’s labour market as well as protect local workers and honest employers.

He adopted the sentencing framework proposed by the prosecution, sorting cases into three bands depending on the seriousness of each offence.

Least serious cases would attract less than five months’ jail, and on the other end of the spectrum, 15 to 24 months’ jail.

Factors to determine severity include the sophistication, extent and consequences of the deception, the motive and role played by the offender, and whether gains had been obtained.

Applying the framework to Chiew’s case, the judge concluded that 12 weeks was appropriate and dismissed his appeal.

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