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3 Common Offences And Sentencing Guidelines Of The EFMA

Sep 29, 2023

Employment of Foreign Manpower Act

The Ministry of Manpower (“MOM”) estimates there to be around 1,424,200 foreign workers in Singapore.^[1] Suffice to say, there is a clear need for clear regulation and laws pertaining to the employment of foreign manpower. This short article will briefly discuss certain provisions of the Employment of Foreign Manpower Act (“EFMA”) with reference to some of the more common offences prosecuted under the EFMA.

Some of the common offences under the EFMA include:

Making false declarations in work pass applications;

Furnishing false information to an MOM officer;

Obtaining “employment kickbacks” – i.e., collection of monies as consideration for employment from foreign workers;

False Declarations in work pass applications

The law requires all foreign workers in Singapore to have a valid work pass (see Section 5 of the EFMA). By way of background, the following table provides a summary of the different passes for different categories of workers^[2]:

Pass Type	Who is it for
Employment Pass	For foreign professionals, managers and executives. Candidates need to earn at least $5,000 a month.
S Pass	For skilled workers. Candidates need to earn at least $3,000 a month.
Work Permit for migrant worker	For semi-skilled migrant workers in the construction, manufacturing, marine shipyard, process or services sector.

It is important to understand that quotas are usually applicable to S Pass and Work Permits. This means that, at any one time, there can only be a limited number of foreign workers holding an S Pass or a Work Pass in a given industry. On the other hand, no quotas are associated with Employment Pass.

The problem of false declarations in work pass applications is especially prevalent in the construction industry, where employers will often require a large number of foreign workers. Such workers, however, often do not qualify for the Employment Pass. Thus, once the quota is reached for S Pass and Work Permits, errant companies will falsely declare in their applications that the foreign workers whom they intend to hire fully satisfy the Employment Pass requirements.

Section 22(1)(d) of the EFMA criminalises such false declarations, and reads as follows:

“Any person who –

…

in connection with any application for or to renew a work pass or for any other purpose under this Act, makes any statement or provides any information to the Controller or an authorised officer or employment inspector which the person knows, or ought reasonably to know, is false in any material particular or is misleading by reason of the omission of any material particular

…

shall be guilty of an offence…”

The punishment for this offence is found in Section 22(1)(i), which prescribes for: (a) a fine not exceeding $20,000; or (b) to imprisonment for a term not exceeding 2 years; or (c) to both.

Sentencing Guidelines:

A sentencing framework, crucial for criminal lawyers, has been established by the High Court where an offender falsely declares information in an application for a work pass. The High Court has stated that, generally, a custodial sentence would be the starting point for such an offence.

There are three broad steps to the framework.

First, the court will consider a non-exhaustive list of offence-specific factors:

Materiality of the false representation on the mind of the decision-maker;

Nature, sophistication and extent of the deception;

Consequences of the deception;

Whether a transnational element was present and/or whether the offence was committed as part of a criminal syndicate’s operations;

The specific role played by the offender, and relatedly, the number of people involved in the furnishing of false information;

Whether the offender obtained gains (financial or otherwise) from the commission of the offence; and
The motive of the offender in circumventing the work pass framework, e.g., for vice or criminal activities.

Second, based on the forecited factors, the Court will sort the offence into the following sentencing bands:

Band	Elaboration	Sentencing Range
1	Lower end of the spectrum, involving one or very few offence-specific factors, or where offence-specific factors were not present to a significant degree.	Short custodial sentence of less than five months’ imprisonment
2	Middle band of the spectrum, involving higher levels of seriousness or harm, comprising cases falling between Bands 1 and 3.	Five to 15 months’ imprisonment
3	Higher end of the spectrum, involving numerous offence-specific factors, or where offence-specific factors were present to a significant degree.	15 to 24 months’ imprisonment

Third, the sentence is adjusted based on the offender-specific factors – i.e., the personal mitigating factors applicable to the offender. This could relate to his character, personal attributes, expression of remorse, and cooperation with authorities. Crucially, the High Court noted that a fine might be appropriate where strong personal mitigating factors are present.

Furnishing false information to an MOM officer

Closely related to the offence of making false declarations in work pass applications is the offence of furnishing false information to an MOM officer. The latter offence will usually arise in the context of an offender attempting to cover up the commission of the former offence.

For instance, if an offender had committed an offence of making false declarations in work pass applications, he would usually be investigated and interviewed by MOM officers. It is common for the said offender to then cover up his offence of making false declarations in work pass applications by furnishing false information to the MOM officers. In fact, the offender might even instruct his workers to do the same.

The offence of furnishing false information to an MOM officer is also covered under Section 22(1)(d) of the EFMA, which is, once again, reproduced below:

“Any person who –

…

in connection with any application for or to renew a work pass or for any other purpose under this Act, makes any statement or provides any information to the Controller or an authorised officer or employment inspector which the person knows, or ought reasonably to know, is false in any material particular or is misleading by reason of the omission of any material particular

…

shall be guilty of an offence…”

Similarly, the punishment for this offence is found in Section 22(1)(i), which prescribes for: (a) a fine not exceeding $20,000; or (b) to imprisonment for a term not exceeding 2 years; or (c) to both.

Sentencing Guidelines:

Unlike an offence of falsely declaring information in work pass applications, there is no sentencing framework for an offence of furnishing false information to an MOM officer. However, the sentencing norm for an offence of furnishing false information to an MOM investigator is an imprisonment term of two weeks.

The Prosecution has also indicated that they will treat such an offence in like fashion to an offence of furnishing false information under Section 182 of the Penal Code. Notably, where appreciable harm is caused, a custodial term will normally be meted out for an offence under Section 182 of the Penal Code.

In fashioning the appropriate sentence, the Court will likely have regard to the harm caused and the culpability of the offender.

The factors that go towards culpability include:

whether the offender knew or merely believed that the statement given was false;

whether the offender intended or merely knew it to be likely that the harm would arise;

whether the giving of false information was pre-mediated or planned, or whether it was simply spontaneous;

whether active, deliberate, or sophisticated steps were taken by the offender to bolster the deception and boost the chances of hoodwinking the public authorities;

the motive of the offender in giving the false information;

whether the deception was perpetrated despite or in active defiance of a warning not to lie;

the number of times the lie was actively said;

the number of people instigated or involved in the deception, and the specific role played by the offender;

whether the offender had exploited or exerted pressure on others in the commission of the offence; and

whether the offence was committed due to threat or pressure or fear of another person, which was a mitigating factor.

The factors that go towards harm include:

whether the false statement was recanted, and if so, after how long;

the gravity of the predicate offence which the offender sought to avoid or help another avoid;

the investigative resource unnecessarily expended;

the extent to which the innocent victims were affected, how many victims were affected, and the seriousness of the falsely-alleged crime; and

whether the offender obtained a financial advantage from the commission of the offence.

Employment Kickbacks

As previously mentioned, “employment kickbacks” refer to monies collected in consideration for employment from foreign workers. This is criminalised under Section 22A of the EFMA, which reads as follows:

“A person must not deduct from any salary payable to a foreign employee, or demand or receive, directly or indirectly and whether in Singapore or elsewhere, from a foreign employee any sum or other benefit —

as consideration or as a condition for the employment of the foreign employee, whether by that person or any other person;

as consideration or as a condition for the continued employment of the foreign employee, whether by that person or any other person; or

as a financial guarantee related, in any way, to the employment of the foreign employee, whether by that person or any other person.”

The punishment for a Section 22A(1) EFMA offence is found in Section 22A(2), which prescribes for (a) fine not exceeding $30,000; or (b) imprisonment for a term not exceeding 2 years; or (c) to both.

The following factors are normally considered by the Courts in sentencing an offender who has committed a Section 22A EFMA offence:

Number of charges involved;

Whether restitution was made to the foreign worker;

The amount which was received or deducted from the foreign worker;

Whether the amount received or deducted from the foreign worker amounted to a large proportion of his salary;

Whether there was benefit accrued to the accused;

Whether the accused has pleaded guilty timeously.

[1] https://www.mom.gov.sg/documents-and-publications/foreign-workforce-numbers

[2] https://www.mom.gov.sg/passes-and-permits