Kong Swee Eng v Public Prosecutor: Criminal Reference, Material Witness, and Appellate Court's Power

Kong Swee Eng applied for leave to refer questions of law to the Court of Appeal after being convicted on eight charges by the High Court, reversing the District Court's acquittal. The charges related to corruptly giving gratification to employees of Jurong Shipyard Pte Ltd. The Court of Appeal, comprising Sundaresh Menon CJ, Tay Yong Kwang JCA, and Steven Chong JCA, dismissed the application, finding it an abuse of process and an attempt to overturn factual findings made by the Judge on appeal.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Criminal motion dismissed.

1.3 Case Type

Criminal

1.4 Judgment Type

Ex Tempore Judgment

1.5 Jurisdiction

Singapore

1.6 Description

The Court of Appeal dismissed Kong Swee Eng's application for leave to refer questions of law, finding it an abuse of process.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Public ProsecutorRespondent, AppellantGovernment AgencyCosts awardedWon
Jiang Ke-Yue of Attorney-General’s Chambers
Dhiraj G Chainani of Attorney-General’s Chambers
Kong Swee EngApplicant, RespondentIndividualCriminal motion dismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeNo
Tay Yong KwangJustice of the Court of AppealYes
Steven ChongJustice of the Court of AppealNo

4. Counsels

Counsel NameOrganization
Jiang Ke-YueAttorney-General’s Chambers
Dhiraj G ChainaniAttorney-General’s Chambers
Sunil SudheesanQuahe Woo & Palmer LLC
Khoo Hui-Hui JoyceQuahe Woo & Palmer LLC
Chow Ee NingQuahe Woo & Palmer LLC

4. Facts

  1. Kong Swee Eng and her husband owned Rainbow Offshore Supplies Pte Ltd.
  2. Rainbow supplied equipment and materials for the oil and gas industry.
  3. Rainbow was a supplier of Jurong Shipyard Pte Ltd (JSPL).
  4. Kong Swee Eng was charged with corruptly giving gratification to JSPL employees.
  5. The gratification was allegedly given to advance Rainbow’s business interests with JSPL.
  6. Kong Swee Eng raised a “special relationship” defence.
  7. The High Court found the special relationship defence to be inherently incredible.

5. Formal Citations

  1. Kong Swee Eng v Public Prosecutor, Criminal Motion No 28 of 2021, [2022] SGCA 65

6. Timeline

DateEvent
Investigations by the Corrupt Practices Investigation Bureau
Gratification given to JSPL employees begins
Gratification given to JSPL employees ends
District Judge's decision set out in Public Prosecutor v Kong Swee Eng [2020] SGDC 140
Judge gave his decision in the Prosecution’s appeal
Mr Wong provided a further statement
Judgment Date
Applicant filed CA/CM 28/2021
Mr Wong provided a further statement
Applicant filed HC/CM 105/2021
Applicant discharged her lawyers and engaged a new firm of lawyers
Judge ordered Mr Khoo to pay the Prosecution costs fixed at $2,500

7. Legal Issues

  1. Criminal Reference
    • Outcome: Leave to refer questions of law was denied.
    • Category: Procedural
    • Related Cases:
      • [2018] 1 SLR 659
      • [2006] 4 SLR(R) 45
      • [2020] 1 SLR 984
      • [2022] 1 SLR 535
  2. Evidential Burden
    • Outcome: The court found that the applicant had not discharged her evidential burden of proof.
    • Category: Substantive
  3. Duty to Call Witnesses
    • Outcome: The court held that the Prosecution does not have the obligation to call any particular witness, material or otherwise.
    • Category: Substantive
    • Related Cases:
      • [2020] 1 SLR 984
      • [2022] 1 SLR 535

8. Remedies Sought

  1. Leave to refer questions of law to the Court of Appeal

9. Cause of Actions

  • Corruption

10. Practice Areas

  • Criminal Law
  • Appeals

11. Industries

  • Oil and Gas
  • Shipping

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Public Prosecutor v Kong Swee EngDistrict CourtYes[2020] SGDC 140SingaporeSets out the District Judge's grounds for acquitting the applicant on all ten charges.
Kong Swee Eng v Public ProsecutorHigh CourtYes[2022] SGHC 50SingaporeJudge dismissed CM 105, the application for leave to apply to review the Judge’s decision.
Public Prosecutor v Kong Swee EngHigh CourtYes[2022] SGHC 6SingaporeSets out the Judge's decision to convict the applicant on eight charges.
Public Prosecutor v Lam Leng Hung and othersCourt of AppealYes[2018] 1 SLR 659SingaporeCited for the requirements in s 397(1) of the CPC that need to be satisfied in order for a question of law of public interest to be referred to the Court of Appeal.
Jagatheesan s/o Krishnasamy v Public ProsecutorHigh CourtYes[2006] 4 SLR(R) 45SingaporeCited for the principle that reasonable doubt can arise from a “lack of evidence”.
Muhammad Nabill bin Mohd Fuad v Public ProsecutorCourt of AppealYes[2020] 1 SLR 984SingaporeCited for the principle that the Prosecution does not have the obligation to call any particular witness, material or otherwise.
Roshdi bin Abdullah Altway v Public Prosecutor and another matterCourt of AppealYes[2022] 1 SLR 535SingaporeCited for the principle that the Prosecution does not have the obligation to call any particular witness, material or otherwise.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Prevention of Corruption Act (Cap 241, 1993 Rev Ed) s 6(b)Singapore
Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 394H(1)Singapore
Criminal Procedure Code s 397(1)Singapore
Criminal Procedure Code s 392Singapore
Criminal Procedure Code s 409Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Special relationship
  • Gratification
  • Evidential burden
  • Material witness
  • Criminal reference
  • Abuse of process

15.2 Keywords

  • Criminal reference
  • Material witness
  • Appellate court
  • Corruption
  • Singapore
  • Criminal Procedure Code

17. Areas of Law

Area NameRelevance Score
Prevention of Corruption Act90
Criminal Procedure85
Criminal Law70
Civil Procedure30
Administrative Law20
Contract Law10
Fiduciary Duty5

16. Subjects

  • Criminal Law
  • Criminal Procedure
  • Corruption